[2017] KEHC 2362 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KIAMBU

CIVIL APPEAL NO. 70 OF 2017

CHRISTOPHER OGUTO…......................................1STAPPELLANT/APPLICANT

ROSE JACKSON .................................................. 2NDAPPELLANT/APPLICANT

VERSUS

CHRISTINE LAELI KASOA & ANOTHER (Suing as Legal Representativesof

the Estate ofPaulo Wamukoko Masafu (Deceased)........1STRESPONDENT

RULING

The Applicants seeks stay of execution of the judgment and decree issued against the Appellants/Applicants (“Applicants”) in Thika Chief Magistrate’s Civil Case No. 734 of 2016 pending the hearing and determination of the appeal they have filed herein.

The Applicants have timeously appealed against the lower court judgment. They propose that this Court grant stay on condition that the entire decretal sum is secured by executing an insurance bond with a reputable insurance company, to wit, Britam General Insurance Company Limited, in the Respondent’s favour as security for the entire decretal amount or such other form of security as the Court may direct.

The Application is opposed by the Respondents who have filed a Replying Affidavit.

The facts are as follows. The Deceased, Paulo Wamukoko Masafu, was riding his bicycle along Kirwarwa Road near Makadara when he was hit by a vehicle owned by the 2nd Applicant and driven by the 1st Applicant. The Deceased died as a result of injuries suffered during the accident. The 1st Applicant was charged with the offence of careless driving and he pleaded guilty. In the civil case filed in the lower Court by the Respondents, the Learned Trial Magistrate found the Applicants jointly liable at 100% liability. He proceeded to award damages under various headings amounting to Kshs. 6,160,880/=.

The Applicants are aggrieved by both the apportionment of liability and amount of damages awarded and appealed to this Court. Meanwhile, they filed the present Application for stay. Their main fear is that the Respondents will not be in a position to refund the amounts if they pay the decretal sum to the Respondents and then the appeal succeeds. The Applicants insist that they have a highly arguable appeal which has high chances of success.

The Respondents, on the other hand, find the present Application to be frivolous and to be an abuse of the process of the Court. They make two main arguments:

First, they argue that the Appeal filed herein is not arguable: that there is absolutely no chance that it will succeed. The Respondents pivot their argument on the fact that the 2nd Applicant pleaded guilty to a traffic offence. The Respondents also argue that their evidence on which the Learned Trial Magistrate’s findings on quantum were founded on their unchallenged evidence presented in the lower court since the Applicants presented no evidence of their own. The Respondents are convinced that the appeal is merely meant to delay the inevitable.

Second, the Respondents argue that the Applicants have not shown that the Respondents will be unable to refund the decretal amounts if the appeal succeeds. To this extent, the 1st Respondent swore an affidavit stating that she works at Enkasiti Flowers Limited where she earns Kshs. 10,284/=. In addition, the 1st Respondent has deponed that she owns a farm worth more than Kshs. 5 Million.

In urging the Court to reject the Application, the 1st Respondent has argued that she is suffering to raise the children in the absence of the Deceased and that it is not fair that the Applicants want to keep the fruits of the judgment from her.

The procedural posture of the Application is that this is an application for stay of the judgment of the lower Court. It is, therefore, governed, primarily, by the terms of Order 42 Rule 6 of the Civil Procedure Rules. The conditions to be met by an Applicant in order to be entitled to an order for stay are encapsuled in that Rule in the following terms:

6. (1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of 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 from whose decision the appeal is preferred may apply to the appellate 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.

The law regarding the grant of stay of execution is well established in Kenya. Among the legion of authoritative cases establishing it, the judges of the Court of Appeal were both concise and emphatic in Rhoda Mukuma v John Abuoga:

It was laid down in M M Butt v The Rent Restriction Tribunal, Civil Application No Nai 6 of 1979, (followingWilson v Church (No 2) (1879) 12 Ch 454 at p 488) that in the case of a party appealing, exercising his undoubted right of appeal, the court ought to see that the appeal is not rendered nugatory. It should therefore preserve the status quo until the appeal is heard.

Granting a stay in the High Court is governed by Order XLI rule 4(2), the questions to be decided being

– (a) whether substantial loss may result unless the stay is granted and the application is made without delay; and (b) the applicant has given security.

Hence, under our established jurisprudence, to be successful in an application for stay, an Applicant has to satisfy a four-part test. He must demonstrate that:

The appeal he has filed is arguable;

He is likely to suffer substantial loss unless the order is made. Differently put, he must demonstrate that theappeal will be rendered nugatory if the stay is not granted;

The application was made without unreasonable delay; and

He has given or is willing to give such security as the court may order for the due performance of the decree which may ultimately be binding on him.

I have perused the Memorandum of Appeal filed in this case. I am unable to say that the grounds of appeal enumerated are in-arguable. I should point out that to earn a stay of execution, one is not required to persuade the Appellate court that the filed appeal has a high probability of success. All one is required to demonstrate is the arguability of the appeal: a demonstration that the Appellant has plausible and conceivably persuasive grounds of either facts or law to overturn or vary the original verdict. Although the Respondents wonder how the verdict on liability can be varied when the 2nd Applicant pleaded guilty in the traffic case, we have it on the authority of the Court of Appeal (Robson v Oluoch [1971] EA 376) that the fact of conviction for careless driving does not automatically connote that the person so convicted will be found to be wholly responsible for the accident in a civil suit in negligence.

But what is the substantial loss that the Appellant is likely to suffer if the order is not granted? As shown above, the Applicant sought to establish that the appeal will be rendered nugatory by the high likelihood that the 1st Respondent will be unable to refund any amounts paid to her. In NationalIndustrial Credit Bank Limited v Aquinas Francis Wasike & Anotherthe Court of Appeal held thus:

This Court has said before and it would bear repeating that while the legal duty is on an applicant to prove that an appeal would be rendered nugatory because a respondent because a respondent would be unable to pay back the decretal sum, it is unreasonable to expect such an applicant to know in detail the resources owned by a respondent or lack of them. Once an applicant expresses a respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the respondent to show what resources he has since that is a matter which is peculiarly within his knowledge.

In this case, the Applicants claimed that the 1st Respondent is a (wo)man of straw who will be unable to pay back any amounts paid to her. It follows that the Applicants then argues that the evidential burden shifted to the 1st Respondent to demonstrate that she has the resources to repay any amounts paid to her.

I agree that the evidential burden shifted to the 1st Respondent to demonstrate that she has the resources to pay back the decretal amounts paid to her should she lose the appeal. It is my view that the 1st Respondent has discharged this burden to some extent. She has demonstrated that she is gainfully employed and earns more than Kshs. 10,000/= per month. I do agree with the Applicants that she needed to adduce a little more evidence of the land she allegedly owns. Without any document to substantiate this claim, the Court will not treat it as sufficient proof of her ability to repay the sums if they are paid to her.

Hence, my finding is that the two of the conditions for the grant of stay have been met here: that the application was timeously made and that the Applicant is willing to furnish security and has so offered. However, in my view, the condition that the Applicant demonstrates that the appeal will be rendered nugatory is only partly satisfied. I say so for two reasons: First, it is indisputable that even on appeal the Respondents will be awarded some damages. Indeed, the best the Applicants wish for is equal apportionment of liability. Given their own best-case scenario proposals of quantum given in the Court below, the total amount of damages would be Kshs. 1,749,600/=. I arrived at this figure by adding all the proposals the Applicants made under the various heads of Pain and suffering; Loss of Expectation of life; Loss of dependency and special damages. Given, their own calculations and their own proposal on apportionment of liability, it follows that the amount payable to the Respondents which is undisputed in the Applicants view, is Kshs. 874,800/=. There is absolutely no reason why this amount should not be paid to the Respondents immediately.

Secondly, given the fact that the 1st Respondent has demonstrated that she is gainfully employed, it follows that she is in a position to refund at least part of the decretal amount. I will roughly put a round figure of Kshs. 300,000/= as the amount the 1st Respondent can raise from her salary for a refund of the decretal sum if the appeal goes against her.

I will therefore hold that the Applicants’ Application will succeed in part: they will be granted a stay of execution on the following terms:

That the Applicants pay Kshs. 1,174,800/=, being part of the decretal sum, to the Respondents within thirty days of today;

That the Applicants deposit the entire remaining amount of the decretal sum in a joint interest bearing account opened in the names of the two advocates for the Applicants and Respondents respectively within thirty days of today.

Failure to abide by either (a) or (b) will lead to automatic execution.

Orders accordingly.

Dated and delivered at Kiambu this 2ndday of November, 2017.

…………….....

JOEL NGUGI

JUDGE