[2003] KEHC 1001 (KLR)

IN THE REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA

CIVIL CASENO.5360 OF 1991

BONERI MARINE PRODUCTS LTD.………1ST PLAINTIFF

BONERI MASCHINEN FABRIK LTD…..….2ND PLAINTIFF

BOAZ NERI OKELLO …………………….3RD PLAINTIFF

V E R S U S

LISTO LIMITED ………………………….1ST DEFEDANT

PHILIP MUTUA …………….………….2ND DEFENDANT

R U L I N G

This is an application by way of amended Chamber Summons dated 27th February 1998 seeking an order of stay of execution pending inter partes hearing. Through supporting affidavits by Boaz Neli Okello sworn on 3rd July 1997 and on 14th October 1999 in which the deponent says that execution was being effected beyond the period of 1 year since the issuance of the decree without leave of court and without notice to the applicant. That the suit between the plaintiffs and the defendants is still pending and not yet determined.

That the 1st defendant is no longer in operation and should the plaintiffs succeed in the claim against the 1st defendant then they may not recover and the result of the appeal if successful would be nugatory. Filed with these is applicants affidavit of means Sworn on 25th July 2002.

The application is opposed by the respondents who by their ground of opposition dated the 9th July 1992 says that the application has no merit, that the Decree holder must not be denied the fruits of the judgment in his favour in a money decree and that the application is meant to delay the hearing of the case. Counsel on both sides argued this application keenlMy ra. nGdo csiwteadm ai uftohro trhiteie rse. spondents in his submissions stated a point that the respondents were willing to accept the offer made by the applicant in his further affidavit of 14th October 1999 where on paragraph 10 the deponent says:-

“That without prejudice to the foregoing, directions may be given for the decretal sum to be deposited into the joint interest earning account in the joint names of advocates of the parties herein”

I have looked at the authorities referred to and noted the decisions therein and there is nothing new to affect the rule now fairly established in this jurisdiction that the court appealed from has a discretionary jurisdiction to stay execution of a decree pending appeal where the applicant shows sufficient cause and that the court is satisfied that substantial loss may result to the applicant unless the order is made. That the application is made without unreasonable delay and that the applicant has given security.

Decided cases has elucidated these procedural requirements and one important extension in the cases ……. Is that there is no difference between a monetary decree and any other decree in consideration for stay of execution.

In the court of appeal decision of KENYA SHELL LTD vs BENJAMIN KARUGA KIBIRU & RUTH WAIRIMU KARUGA 1982 – 88, KAR 1019 the court said per Hancox J.A:-

“It is also fine to say that, in considering an application for a stay, the court doing so must address its collective mind to the question of whether to refuse it would as Mr. Kwach urges render the appeal nugatory.”

In the case of MUNGAI vs NDABA [1981] KLR 367

The court of appeal said that before a stay of execution can be granted the applicant must satisfy the court that there is good reason to do so and in exercising its discretion the court looks at the circumstances and facts of the case. Here there is an assertion by applicant which was not seriously challenged that the appeal has high chances of success and that the claim is substantial against the defendant. The whereabout of the defendant is not known and that the 1st defendant has gone out of operation. If stay is refused plaintiff will suffer loss. The court must always look out for this loss. Platt JA said in the KARUGA case that:-

“It is usually a good rule to see if Order 41 r4 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the applicant it would be a rare case when an appeal would be rendered nugatory by some other event.”

I feel on this evidence that the applicant would suffer substantial loss. I therefore grant the application.

I direct that the applicant deposits half of the decretal amount in court as security or in the alternative executes a bankers guarantee or a bond for the said half of the decretal amount.

Given this 21st day of February 2003

A. I. HAYANGA

J U D G E

Read to Mr. Manyonge for plaintiff

Read to Mr. Maina for defendant