[2023] KEHC 25037 (KLR)

Bosibori v Ongworu (Civil Appeal 62 of 2023) [2023] KEHC 25037 (KLR) (9 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25037 (KLR)

Republic of Kenya

In the High Court at Kisii

Civil Appeal 62 of 2023

TA Odera, J

November 9, 2023

Between

Serebona Bosibori

Appellant

and

Peter Kaunda Ongworu

Respondent

Ruling

1. By a chamber summons application dated August 28, 2023 and filed through the firm of Kimondo Gachoka & Company Advocates, filed under the Judicature Act chapter 8, the High Court (Practice and Procedure Rules(Part 1 rule 3)) and all other enabling provisions of the law, the Appellant/Applicant herein seeks the following orders: -1. That the Honourable Court be pleased to order that the Applicant’s Application by way of Notice of Motion dated 26th June 2023 be heard during the current High Court vacation as substantial and irreparable loss shall result to the Applicant if execution of the said Judgment is not stayed, in view of the substantial amount in the judgment.

2. The grounds on the face of the application are that Judgment in Kisii CMCC No.637 of 2021 was delivered on May 22, 2023. Liability was apportioned in the ratio of 80:20 in favour of the Plaintiff and the Plaintiff was awarded the sum of KShs. 253,550/= and a period of 30 days’ stay of execution granted. The Applicant lodged an appeal vide HCCA No. E062 of 2023 and an application dated June 26, 2023 under certificate of urgency seeking stay of execution of the judgment. No directions were issued on the said application. In the meantime, the stay period lapsed and the Applicant faced execution.

3. The Application was supported by an Affidavit sworn by the Appellant/Applicant. She deponed that she was the insured of Motor Vehicle Registration Number KBB 495T which formed the subject of the case. Judgment was delivered on May 22, 2023 in Kisii CMCC No. 637 of 2021 and liability apportioned in the ratio of 80:20 and quantum assessed at KShs. 253,550/=. The Trial Court granted stay of 30 days. She lodged an appeal vide Kisii HCCA No. E062 of 2023. In the meantime, the stay period lapsed. She deponed that she would suffer irreparable loss and damage if compelled to release the entire decretal sum.

4. The Respondent filed a replying affidavit dated 29. 9.23 in which he opposed the application and suggested that the applicant releases half of the decretal sum to him and the other half be deposited in a joint interest earning account in the names of both Counsel herein.

5. It was directed that the Application be disposed off by way of written submissions.

Submissions 6. The Appellant/Applicant filed his written submissions dated October 6, 2023 and filed on October 23, 2023. The Appellant submitted that the application in question is with respect to the question of stay of execution pending the hearing and determination of the application and appeal and that the Appellant be ordered to provide security for the entire decretal sum in the form of a bank guarantee to be issued by Family Bank Limited. She deponed that her application was premised on Order 42 Rules 4 and 6 of the Civil Procedure Rules, 2010. She cited the case of Halai & Another v Thornton & Turpin} (1963) Ltd. [1990] KLR 365 as cited in Industrial Cause No. Cause Number 1715 of 2011, Elena Doudoladova Korir v Kenyatta University [2014] eKLR at Nairobi where the Court of Appeal reiterated that the High Court has unfettered discretion to order a stay of execution of its order or decree and reiterated the three conditions to be met, being: 1) Sufficient cause; 2) Substantial loss; and 3) Security. On substantial loss, the Appellant submitted that she had a meritorious and arguable appeal. She submitted that the judgment was of a substantial amount and she was apprehensive that should the decretal amount be released to the Respondent; she may not be able to recover the same from the Respondent. She submitted that the Respondent had not submitted any evidence of his financial standing. She relied on the case of Kenya Orient Insurance Co. Ltd. v Paul Mathenge Gichuki & Another [2014] eKLR where the Court held that the burden of proof of ability to repay the decretal sum lies with the Respondent. On unreasonable delay, she submitted that the Judgment was delivered on May 22, 2023 and the application for stay was filed immediately thereafter. On security, the Appellant submitted that was ready to furnish sufficient security in the form of a suitable bank guarantee from a reputable financial institution and relied on the case of Shanzu Beach Resort v Crown Marble and Quartz [2020] eKLR. On a good and arguable appeal, she submitted that her appeal had a high chance of success which appeal would be rendered nugatory if stay of execution was not granted. Lastly, she urged the Court to balance the rights of the Appellant, to exercise her right of appeal, and the Respondent’s right to enjoy the fruits of her judgment.

7. The Respondent did not file any submissions.

Determination 8. I have considered the Application herein and the Appellant’s Submissions.

9. When I retired to write the Ruling, I noted that there is no Application before this Court dated June 26, 2023. A perusal of the Appellant’s Application dated August 28, 2023, indicates that annexture SB-2 is the alleged application. Annexture SB-2 is a Notice of Motion Application dated 26. 6.2023 and filed under a Certificate of Urgency. The said Application was filed before the Trial Court in Kisii MCCC No. 637 of 2021 Peter Kaunda Ongworu v. Serebona Bosibori. I have gone further and perused the Trial Court file and indeed there was an Application dated June 26, 2023 which application sought for orders of stay of execution pending appeal. I further note, that the said Application was subsequently withdrawn vide a Notice of Withdrawal dated August 28, 2023.

10. Order 42 Rule 6 of the Civil Procedure Rules, 2010 provides as follows: -Stay in case of appeal(1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court to have such order set aside.(2)No order for stay of execution shall be made under sub rule [1] unless-(a)the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and(b)such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.(3)Notwithstanding anything contained in sub rule [2], the court shall have power without formal application made, to order upon such terms as it may deem fit a stay of execution pending the hearing of a formal application.(4)For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given.(5)An application for stay of execution may be made informally immediately following the delivery of judgment or ruling.(6)Notwithstanding anything contained in sub rule [1] of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.

11. I have taken the liberty of reproducing the contents of Order 42 Rule 6 of the Civil Procedure Rules, 2010 in a bid to consider whether there is indeed a way in which I could grant orders of stay of execution in the absence of an application. To my mind, without a formal application, I cannot allow that which has not been sought.

12. In the absence of an application seeking orders of stay of execution ending appeal, my hands are tied. Parties are bound by their pleadings. I cannot render myself on an issue that is not before the Court.

13. In the end, I strike out the Appellant’s Application dated August 28, 2023 with costs.

DATED, DELIVERED AND SIGNED AT KISII THIS 9TH DAY OF NOVEMBER 2023. T.A ODERA...................................JUDGEI certify that this is a true copy of the originalSignedDEPUTY REGISTRARIn the presence of:Mr. Ondolo for the Appellant/ ApplicantMs. Musili for the RespondentOigo - Court Assistant