[2022] KEHC 10670 (KLR)

Classic Parcel Handlers Limited v Kipyator & another (Civil Appeal E043 of 2021) [2022] KEHC 10670 (KLR) (6 May 2022) (Ruling)

Neutral citation: [2022] KEHC 10670 (KLR)

Republic of Kenya

In the High Court at Kericho

Civil Appeal E043 of 2021

AN Ongeri, J

May 6, 2022

Between

Classic Parcel Handlers Limited

Applicant

and

Kabon Kipyator

1st Respondent

Joseph Yator

2nd Respondent

Ruling

1. The application coming for consideration in this ruling is the one dated November 26, 2021 seeking the following orders:-i.Thatthis matter be certified urgent and heard ex parte in the first instance and service thereof be dispensed with.ii.Thatthis Honourable Court be pleased to order a stay of Execution of the Judgment/Decree dated 29/06/2021 vide Kericho CMCC No 70 of 2019, Kabon Kipyator & Joseph Yator(Suing as Administrators & Legal Representatives of the Estate of Benard Kipkemboi Yatorpending the hearing and determination this application inter parties.iii.Thatthis Honourable Court be pleased to order a stay of Execution of the Judgment/Decree dated 29/06/2021 Kericho CMCC No 70 of2019, Kabon Kipyator& Joseph Yator(Suing as Administrators & Legal Representatives of the Estate of Benard Kipkemboi Yatorpending the hearing and determination of Kericho HCCA No 43 of 2021.

2. The application is supported by the affidavit of Haron Mondadated 22/11/2021 in which he deposed that initial stay period granted was set to lapse on 3/12/2021, they had lodged an appeal vide Kericho HCCA No 43 of 2021 against the judgment delivered on 4/11/2021 on both quantum and liability. He further stated that the appeal did not operate as stay of execution that its movable properties were exposed to execution proceedings by way of proclamation and attachment which would render the appeal nugatory.

3. The applicant further deposed that the application for stay of execution pending appeal was made within a reasonable time and without undue delay and that through their insurer they were willing to offer security for the decretal amount in the form of a bank guarantee pending the hearing and determination of the appeal.

4. The applicant deposed that they would suffer irreparable loss and damage should they be compelled by execution proceedings to release the full decretal amount to the respondent and in the event the appeal was to succeed given that the respondent was a man of straw, recovery of the decretal sum would be impossible.

5. The applicant further deposed that the application for stay of execution pending appeal would not occasion any prejudice to the respondents as the same could be compensated by an award of costs.

6. The respondents opposed the application and filed a replying affidavit sworn by Joseph Yatoron 25/1/2022 in which he deposed that the application for stay was made solely with the intention of frustrating and delaying the Respondents from enjoying the fruits of their judgment.

7. Therespondents stated that the applicant had not demonstrated the loss or damages it would suffer in the event that the decretal sum was paid to therespondents.

8. The respondents stated that the appeal was only on the issue of quantum and an appeal on the issue of liability would not succeed as the applicant had closed its case without calling any witness in the trial court.

9. The respondents stated that the court if so inclined should order the applicant to release ½ of ¾ of the decretal sum and the balance deposited in court notwithstanding that they had not disclosed or furnished the court with documentary evidence of their financial standing.

10. The respondents stated that the bank guarantee offered by the applicant’s insurer was vague and general in nature and as such is not adequate security for due performance of the decree/judgment herein and rather that theapplicant should be ordered to deposit the entire decretal sum in court or to release half of the decretal amount to the respondents pending hearing and determination of the appeal.

11. The respondents stated that they were entitled to the fruits of their judgment and that any decision or order suspending the enjoyment of judgment could only be rendered in exceptional circumstances.

12. The parties filed written submissions which I have duly considered.

13. The applicants submitted that the appeal is arguable and raises serious points of law, that they were appealing against liability and quantum, that the respondents had failed to prove their case on a balance of probability and that the award made by the lower court was excessive and not proportionate to the loss suffered by the estate of the deceased. The applicants cited the Court of Appeal case of Kenya Revenue Authority v Sidney Changole & 3ors(2015) eKLR.

14. The applicants submitted that the means of therespondents were unknown and that it was highly unlikely that therespondents were capable of refunding the decretal amount in the event the appeal were to succeed and further that the respondents had not disclosed or furnished thecourt with documentary evidence to prove financial standing. The applicants cited the following cases Edward Kamau &anor v Hannah Mukui Gichuki &anor(2015) eKLR, National Industrial Credit Bank Ltd v Aquinas Francis Wasike Court of Appeal Civil Application No 238/2005 and Tabro Transporters Ltd v Absalom Dova Lumbasi (2012) eKLR.

15. The applicants submitted that they filed their memorandum of appeal and application for stay pending appeal within the stipulated timelines.

16. The applicants submitted that they were willing to furnish security by providing a bank guarantee for the decretal sum pending hearing and determination of the appeal. They cited the case of Selestical Limited v Global Rock Development (2015) eKLR.

17. The applicants further submitted that they had satisfied the conditions for stay pending appeal as set out in order 42 rule 6.

18. The respondents submitted that they were not wholly opposed to the application for stay pending appeal.

19. The respondents submitted that the appeal on liability was merely academic and an exercise in futility as the applicant did not call any witness during the trial and that though contributory negligence was pleaded in the applicant’s statement of defence no evidence was tendered in support thereof.

20. The respondents further submitted that the appeal was only on the issue of quantum and as such they were justified to be enjoying part of the fruits of the judgment. The Respondents sought to have part of the judgment sum released to them pending the hearing and determination of the appeal and cited the following cases Mohan Meakin (K) Limited v Mutunga Kiundi Nairobi HCCA No. 252 of 2000, John Maina Njuguna v Esther Njambi Machakos Application No. 983 of 2013, Macharia T/A Macharia & Co Advocates v East African StandardNairobi HCCC No 612 of 2000.

21. The respondents submitted that they were opposed to the Applicants offering a bank guarantee as security, as the purported bank guarantee was general and vague and rather that the court if so inclined should order that the entire decretal amount be deposited in court or that half the decretal amount be released to them.

22. The issues for determination in the application dated 26/11/2021 are as follows:-i.Whether the applicant is entitled to stay of execution pending appeal.ii.Who pays the costs of the application?

23. On the issue as to whether the applicant is entitled to stay pending appeal, the governing provision is order 42 rule 6 of the Civil Procedure Ruleswhich provides as follows:-“(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 subrule (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.”

24. In the case of Samvir Trustee Limited v Guardian Bank LimitedNairobi (Milimani) HCCC 795 of 1997 Warsame J (as he then was) expressed himself as hereunder: “Every party aggrieved with a decision of the High Court has a natural and undoubted right to seek the intervention of the Court of Appeal and the court should not put unnecessary hindrance to the enjoyment and exercise of that right by the defendant. A stay would be overwhelming hindrance to the exercise of the discretionary powers of the court…The court in considering whether to grant or refuse an application for stay is empowered to see whether there exist any special circumstances which can sway the discretion of the court in a particular manner. But the yardstick is for the court to balance or weigh the scales of justice by ensuring that an appeal is not rendered nugatory while at the same time ensuring that a successful party is not impeded from the enjoyment of the fruits of his judgement.

25. The court has the discretion to determine the conditions for security of costs. In the case of Arun C Sharma v Ashana Raikundalia t/a Rairundalia & Co Advocates & 2others[2014] eKLR, the court stated that; “The purpose of the security needed under order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. It is not to punish the judgment debtor…”

26. In the case of Focin Motorcycle Co. Limited v Ann Wambui Wangui & another [2018] eKLR, Gitari J stated that; “Where the applicant proposes to provide security as the applicant has done, it is a mark of good faith that the application for stay is not just meant to deny the respondent the fruits of judgment. My view is that it is sufficient for the applicant to state that he is ready to provide security or to propose the kind of security but it is the discretion of the court to determine the security. The applicant has offered to provide security and has therefore satisfied this ground for stay.”

27. I hereby allow the application for stay pending appeal on condition that half the decretal sum is deposited in an interest earning account held jointly by counsels for both parties to be opened within sixty (60) days of this date.

28. The applicant to pay the costs of the application.

DELIVERED, DATED AND SIGNED AT KERICHO THIS 6TH DAY OF MAY, 2022. A. N. ONGERIJUDGE