[2022] KEHC 16128 (KLR)

Brinks Security Services Ltd v Chelogoi & another (Civil Appeal 139 of 2017) [2022] KEHC 16128 (KLR) (8 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16128 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Appeal 139 of 2017

HK Chemitei, J

December 8, 2022

Between

Brinks Security Services Ltd

Applicant

and

David Mutai Chelogoi

1st Respondent

National Cereals and Produce Board

2nd Respondent

Ruling

1. The application dated June 8, 2022 by the applicant seeks stay of execution of the decree of this court as well as taxation of the 1st respondent’s bill of costs pending the appeal to the Court of Appeal. The application is supported by the sworn affidavit of one Raymond Nzioka the applicant’s Human Resource Manager dated the same date.

2. The said affidavit acknowledges the decision by this court dated March 24, 2022 in which it dismissed its appeal and thus paved way for the 1st respondent to proceed and enjoy the fruits of the judgement from the lower court. It is instructive to note that the 2nd respondent having settle issues with the 1st respondent is not part of the proceedings herein.

3. The applicant contents that the intended appeal shall be rendered nugatory should the amount be paid off to the applicant. That the security of the sums of KShs 500,000 which has been in this court be applied as well pending the intended appeal.

4. The applicant has also sought to stop the taxation of the costs herein in favour of the respondent arguing that if allowed the respondent shall proceed to execute the decree to its detriment.

5. The respondent vide the replying affidavit of Cyprian Mugambi Nguthari dated June 24, 2022 has opposed the said application on the grounds that the intended appeal is not meritorious and that the amount of KShs 500,000 is not enough security pending appeal. He therefore prayed that the application be disallowed and the respondent be allowed to tax his bill of costs.

6. The court directed the parties to file submissions which they have complied. This court need not reiterate them as they are generally a replica of the issues raised in the rival affidavits.

7. The law governing stay pending appeal is contained under order 42 rule 6 of the Civil Procedure Rules. In this case it is clear that the application has been brought without undue delay.

8. The merits or otherwise of the intended appeal is left to the said court. Whether the memorandum of appeal was filed within time or not as submitted by the respondent is left to the appellate court to make its own findings. The crucial issue is whether by not allowing the application the applicant stands to suffer loss and damage. Is the security of KShs 500,000 applicable in this case or the same should be released to the respondent?

9. Taking the totality of this case and the history behind it, there is no evidence that the respondent will not be in a position to refund the decretal sum should the applicant succeed in its appeal. This has not been exhibited at all. No evidence that he was a man of straw.

10. At the same time this court does not see any prejudice the applicant stands to suffer should the security deposited in court be released to the 1st respondent. The court at any rate must always balance the interest of both parties.

11. It is also necessary to note that the 2nd respondent with whom the applicant had been sued with has already settle its part of the decree. This nonetheless does not mean that the applicant should not seek further redress from the next temple of justice.

12. In the premises, this court does not find it necessary to inhibit the 1st respondent from enjoying the fruits of judgement.

13. The application is therefore dismissed with costs to the 1st respondent.

DATED SIGNED AND DELIVERED AT NAKURU VIA VIDEO LINK THIS 8TH DECEMBER 2022. HK CHEMITEI.JUDGE