[2022] KEHC 1435 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

CIVIL APPEAL NO. E051 OF 2021

CLEMENT WAKARI NJOROGE........APPELLANT /APPLICANT

VERSUS

DANIEL MWANGI WAHOME

(Suing as the legal representative of the estate of

JULIA WAMAITHA MWANGI.................................RESPONDENT

RULING

1. The appellant/applicant has filed an application dated 28th September 2021 seeking the following orders:

(a) Spent

(b) Spent

(c) There be a stay of execution of the decree emanating from the judgment delivered on 2nd September 2021 in Karatina PMCC No.18 of 2019 – David Mwangi Wahome (Suing as the legal representative of the estate of Julia Wamaitha Mwangi) versus Clement Wakari Njoroge pending the hearing and determination of the Appeal.

(d) Costs of this application be in the cause.

2. The application is based on grounds on the face of the application and supported by the affidavit of the applicant. The applicant states that the respondent has obtained a decree against him of Ksh.3,387,000/- in Karatina PMCC No.18 of 2019. That the applicant faces an imminent danger of execution to satisfy the decree. That the applicant has filed an appeal that has high probability of success and will suffer substantial loss if the decree is executed before the appeal is heard. Further that the applicant is willing to comply with any conditions imposed by this court for stay of execution pending hearing and determination of the appeal.

3. The application was opposed by the respondent vide his replying affidavit sworn on the 26th November 2021 in which he deposes that there are no sufficient grounds to warrant the application being granted.

Submissions–

4. The advocates for the appellant, Kiruki & Kayika Advocates, submitted that the respondent`s means are not known. That if stay of execution pending appeal is not granted they stand to suffer substantial loss of the stated amount as the respondent may not be able to refund it in the event that the appeal succeeds. Counsel relied on the case of Johnson Mwiruti v Samuel Macharia Ngure(2004) where the court granted stay of execution on the ground that substantial loss could result to the applicant due to the possible inability of the respondent to pay back the money.

5. It was submitted that the duty to show that the respondent was in a position to refund the money in the event that the appeal succeeded was on the respondent as held in the case of National Industrial Credit Bank v Aquinas Francis Wasike & Another (2006) eKLR that:

“This Court has said before and it would bear repeating that while the legal duty is on an applicant to prove the allegation that an appeal would be rendered nugatory 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 the lack of them. Once an applicant expresses a reasonable fear that 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..”

6. Counsel submitted that the appeal was filed within the stipulated period of one month and therefore that there was no delay in filing the appeal.

7. It was submitted that the appellant is willing to offer security and to comply with any conditions that the court may impose in order to protect the interests of the respondent. That in the same breadth, it is only fair for the appellant to be granted orders for stay of execution so that in case the appeal succeeds he will be able to recover his money.

8. The respondent relied on his replying affidavit sworn on the 26th October 2021 in which she deposes that the application for stay of execution is a delaying tactic as the appellant`s advocates had vide email dated 2nd September 2021 requested the advocates for the respondent to grant them 30 days stay of execution to enable their client process the payment of the decretal sum. That vide a letter dated 23rd September 2021, marked B, the respondents proposed a post judgment negotiation of Ksh. 2. 9 million which they never confirmed payment. That the appeal is without basis and is meant to delay payment to the respondent.

9. I have considered the application, the grounds in support thereof and the grounds in opposition thereto.

10. Order 42 Rule 6 of the Civil Procedure Rules sets out the grounds upon which an order for stay of execution pending the determination of an appeal can be granted. An applicant has to demonstrate the following:

(1) Substantial loss may result to the applicant unless the order was made.

(2) The application was made without delay.

(3) Such security as the court orders for due performance of such decree or order as may ultimately be binding on him has been given by the applicant.

11. The power of the court to grant stay of execution pending appeal is a discretionary one and like every aspect of discretion must be exercised judicially. The Court of Appeal in Butt v Rent Restriction Tribunal [1982] KLR 417gave guidance on how a court should exercise such discretion and held that:

“1. The power of the court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.

2. The general principle in granting or refusing a stay is; if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should that appeal court reverse the judge’s discretion.

3. A judge should not refuse a stay if there are good grounds for granting it merely because in his opinion, a better remedy may become available to the applicant at the end of the proceedings.

4. The court in exercising its discretion whether to grant [or] refuse an application for stay will consider the special circumstances of the case and unique requirements. The special circumstances in this case were that there was a large amount of rent in dispute and the appellant had an undoubted right of appeal.

12. Section 79G of the Civil Procedure Act requires that an appeal from a subordinate court to the High Court be filed within a period of thirty days from the date of the decree or order. The application herein was filed within 30 days of the delivery of the judgment. There was thereby no delay in filing the application. That threshold has thereby been met.

13. The applicant says in his application that he stands to suffer substantial loss if the application is not allowed as the respondent will proceed with the process of execution. In the case of Kinyunjuri Muguta v Wotoku Muguta (2018) eKLR it was held that it was not enough to merely state that loss will be suffered but that the applicant must show the substantial loss that it will suffer in the event that the orders sought are not given. In my view, the fact that the respondent will proceed with execution if the prayers sought are not granted does not amount to substantial loss on the part of the applicant as execution is a legal process. In JamesJames Wangalwa & Another v Agnes Naliaka Chesoto (2012)eKLR where it was held that:

“No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself , does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal.

14. The advocates for the applicant submitted that the respondent was not in a position to refund the money in the event that the appeal was successful. However, the issue was not raised in the application nor in the supporting affidavit of the applicant. The issue only cropped up in the submissions by the advocates for the appellant. Submissions are not evidence. It was the duty of the applicant to raise the issue so that the respondent could respond to it. The respondent was not under duty to prove something that was not raised in the application. I therefore find that the applicant has not established that he stood to suffer substantial loss if the prayers sought are not granted. The threshold of substantial loss has not been met.

15. The applicant says that he is willing to comply with any conditions that the court may impose. The respondent says that the applicant had offered vide a letter dated 23rd September, 2021 marked B, to settle the claim at an all inclusive sum of Ksh. 2. 9 million. That as a pre-condition for stay the court should order that the applicant pays the respondent the offered sum of Ksh.2. 9 million and the balance of the decretal amount be deposited in a joint interest earning account.

16. I have looked at the letter from the advocates for the applicant dated 23rd September 2021. It is written on “without prejudice” basis. This means that the letter is not admissible in evidence before a court of law in a dispute between the two parties without consent of both parties concerned. There was no such consent by the applicant. In that case the respondent cannot use the letter to advance her case that the applicant offered to settle the matter at 2. 9 million. That therefore cannot be a pre-condition for granting of stay pending appeal.

17. The applicant says that the appeal has high probability of success as the trial court erred in finding the applicant 100% liable for the accident and awarding inordinately high general and special damages.

18. The appellant is entitled to exercising his right of appeal. I do not think that it is proper for the court to lock out a party from exercising its right of appeal unless the appeal looks hopeless and unsustainable in law. The respondent on the other hand is entitled to the fruits of his judgment. The court has to balance these rival rights. In Gitahi & Another v Warugongo, Nairobi Civil Application no. 13 of 1988, (1988) KLR the Court of Appeal held that:

“..In an application for stay pending appeal the court is faced with a situation where judgement has been given. It is subject to appeal. It may be affirmed or it may be set aside. The court is concerned with preserving the rights of both parties pending that appeal. It is not the function of the court to disadvantage the defendant while giving no legitimate advantage to the plaintiffs. It is the duty of the court to hold the ring even-handedly without prejudicing the issue pending the appeal. …The aim of the court in this case was to make sure, in an even-handed manner, that the appeal would not be prejudiced and that the decretal sum would be available if required…”.

19. In this matter the applicant is ready to offer security as may be imposed by the court. There is no reason to deny him the prayers sought for stay pending appeal. I accordingly allow the application on condition that half of the decretal sum is paid to the respondent within one month from the date hereof and the balance be placed in a joint interest earning account in the names of the respective advocates for the parties.

Orders accordingly. Costs to be in the cause.

DELIVERED, DATED AND SIGNED AT NYERI THIS 17TH DAY OF MARCH 2022.

J.N. NJAGI

JUDGE

In the presence of:

Ms. Abobo: - for Appellant/Applicant

Mrs Wahome:- for Respondent

Court Assistant: Kinyua.

30 days R/A.