[2017] KEHC 1222 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MAKUENI

HIGH COURT CIVIL APPEAL NO. 256 OF 2017

DAVID MBUBA ………………….…….………………….. 1ST APPELLANT

SOLOMON ITULE MBUVI …………....…….…………… 2ND APPELLANT

-VERSUS-

VICTORIA MWONGELI KIMWALU & ANGELINE KATEE NGIWILI

(Suing as the legal administrators of the estate of

PATRICK NDILE MWOLOLO (Deceased) ………......…RESPONDENTS

RULING

INTRODUCTION

1. By a motion dated 23/08/2017, the Applicant prays for orders of stay of execution of the decree pending hearing and determination of the appeal inter alia.

2. The same is premised on the grounds on the foot of the notice of the motion namely:-

3. That the Appellant/applicants have already lodged a Memorandum of Appeal at Machakos High Court and has as well requested to be supplied by the Trial Honourable Court with copies of proceedings and a duly dated and signed copy of judgement delivered on 27th July 2017.

4. That the Appellant/Applicants have an overwhelming and high chance of success in their intended appeal and in the event of execution, the said intended appeal will be rendered nugatory.

5. That unless this Honourable Court grants the Appellant/Applicants Stay of Execution pending Appeal, the Plaintiff will be at liberty to execute the Judgement any time after 26th August 2017 when the THIRTY (30) days stay of execution already granted lapses thereby subjecting substantial and irreparable loss and damages to the Appellant/Applicants on top of public embarrassments.

6. That should Stay of Execution pending Appeal not be granted then the Applicant stands to suffer substantial irreparable loss and damages as the decretal sum is colossal and if the same is released to the Respondent, the Respondent may not be able and in a position to refund the same upon hearing and full determination of the main Appeal.

7. That the Appellant/Applicants are willing to adhere to any favourable conditions given by this Honourable Court for grant of Stay of Execution, pending hearing and determination of their intended appeal and is ready to issue an Insurance Bond for the judgement sum.

8. That this application has been brought expeditiously in the circumstances.

9. That in the interests of Justice, this Honourable Court should exercise its inherent discretion in favour of the Appellant/Applicants.

10. That this Honourable Court has jurisdiction to grant Stay of Execution pending Appeal pending the hearing and final determination of this application as well as the intended Appeal.

11. That no prejudice will be occasioned to the Respondent.

12. The application is supported by the affidavit of Sarah Weru sworn on 23/08/2017, and attached annexures. The application is opposed by way of Replying Affidavit sworn by Victoria Mwongeli Kimwalu on 31/08/2017.

13. The parties agreed to canvass the application via written submissions which they filed and exchanged.

14. The Applicant submits that:-

15. The Respondent filed suit being KILUNGU SRMCC NO. 158 OF 2016 VICTORIA MWONGELI KIMWALU & ANGELINE KATEE NGWILI (Suing as the Legal Administrators in the Estate of PATRICK NDILE MWOLOLO (deceased) –VS- DAVID MBUBA & ANOTHER, seeking damages on behalf of the estate of her deceased husband who passed away in a fatal road accident.

16. The suit proceeded to hearing on Assessment of Damages as consent on liability had been entered at the rate of 20:80 in the Respondent’s favour.

17. Judgement was delivered by the Honourable Trial Court on 27th July, 2017 as follows:-

Pain and Suffering Kshs.20,000. 00/=

Loss of Expectation of Life Kshs.100,000. 00/=

Loss of Dependancy Kshs.4,000,000. 00/=

Kshs.4,120,000. 00=

Less 20% Kshs.824,000. 00/=

Plus costs and Interests Kshs.3,296,000. 00=

18. The Applicant being aggrieved with the award in particular on loss of Dependency filed Appeal being MAKUENI CIVIL APPEAL NUMBER 256 OF 2017 DAVID MBUBA AND ANORTHER. –VS- VICTORIA MWONGELI KIMWALU & ANOTHER. The Memorandum of Appeal is annexed to the application as “SW1”. The Applicant has already set the Appeal process in motion and has applied for typed and certified copies of proceedings and Judgement to enable the preparation of the Record of Appeal. The letter dated 23rd August, 2017 requesting for the typed proceedings is annexed as “SW2”.

LEGAL PROVISIONS

19. The Application seeking Stay of Execution Pending Appeal hearing and determination of the Appeal has been brought under Section 1A, 1B, 3, 3A, 63E of the Civil Procedure Act Cap. 21 Laws of Kenya, Order 22 Rule 22(1), Order 42 Rule 6 and Order 51 of the Civil Procedure Rules.

20. The Applicant submits that he has met all the conditions for Grant of Stay of Execution Pending Appeal being;-

21. Arguable appeal with a high chance of success: Your Lordship, the Applicant has already lodged and filed Appeal on the Judgement of the lower court delivered on 27th July, 2017. The said Appeal has a high chance of success and would be held nugatory if Stay of Execution pending Appeal is not granted.

22. Substantial Loss: The Applicant has also proved that if stay sought is not granted, the Applicant will suffer irreparable harm and substantial loss as the Judgement sum at Kshs.3,296,000. 00/= is colossal and in the event Stay of Execution pending Appeal is not granted, the Respondent will not afford and will not be able to refund the Applicant the same monies due to her financial status in the event the Applicant is successful in the Appeal. The Respondent in her evidence in the Trial Court did inform the court that she used to rely on the support of her deceased husband which she lost on his demise. The Respondent also testified that she has young children and other dependants who depend entirely on her. The Respondent has also not provided any proof of her alleged income as deponed in her.

The Respondent has also not provided any proof of her alleged income as deponed in her Replying Affidavit. There is as such no way of ascertaining her alleged income which we therefore submit is not proved and is a mere allegation. Hence it is only prudent that this court grants the stay sought as the Applicant stands to suffer substantial and irreparable loss if the same is not granted and the Applicant has demonstrated sufficient cause for grant of the Stay of Execution pending Appeal.

23. Security: The Applicant is willing to offer security for the due performance of such decree or order as may be ultimately binding on the Applicant and the Applicant has undertaken to issue an Insurance Bond to secure the decretal sum.

24. Application for Stay of Execution pending Appeal has been brought without undue delay: Further he states that the Deponent is a Senior Legal Officer of the Insurer of the accident motor vehicle in which the deceased was travelling in and as she has deponed, the Insurer will eventually be called upon to pay the Judgement sum hence the Deponent has the requisite locus to swear the Affidavit. He relies in the Authority in:-High court of Kenya at Nairobi Civil Case No. 60 of 2010 Uhuru Muigai Kenyatta –VS- Baraza Limited t/a Kenya Television Network (KTN) 2012KLRThe court found there was likelihood of loss to the Applicant’s reputation and found that substantial loss had been proved and proceeded to grant Stay of Execution pending Appeal after requiring the Applicant to furnish security for the due performance of the decree by depositing the decretal sum in an interest earning account.

25. The Respondent submitted that:-

26. WHETHER THE APPLICATION WAS BROUGHT WITHOUT UNDUE DELAY. The judgement in the lower court matter Kilungu SRMCC No. 188 of 2017 was delivered on 27th July, 2017. The application herein was filed on 25th August 2017.

27. WHETHER THE APPLICANT HAS PROVED THAT SUBSTANTIAL LOSS WILL OCCUR IF THE ORDERS ARE NOT GRANTED. He submits that Sarah Weru has stated in her Supporting Affidavit that she is a Senior Legal Officer at Saham Insurance (the Appellants’ insurance). It is worthy to note at this point that the deponent has NOT provided any cogent or tangible evidence to prove that she has the authority to act on behalf of the Insurance and to swear the said affidavit. Sarah Weru is not a party to this suit and therefore lacks adequate locus to present the facts that she has to this case. In the event has stated, that the insurance company stands to suffer irreparable loss and damages as well as public embarrassment if the orders prayed for are not granted.

28. The onus of proving that the Appellant/Applicant will suffer any loss and to what extent lies with the Appellant. It is a well known legal maxim and rule that he who alleges must prove. The Appellant has however not provided any tangible or verifiable proof of the loss that is expected to occur. The kind of proof that ought to be provided to this honorable court ought to be to a standard able to clearly substantiate the claim alleged, otherwise the suggestion of substantial loss remains to be a mere proposition and not a fact.

29. The burden of proof on substantial loss does not shift to the Respondent if it has not been discharged by the Applicant. In this instance therefore, the Appellants cannot begin to go into the financial capacity or incapacity of the Respondents if they themselves have not demonstrated the basis of their application. All the same, one of the Respondents, Victoria Mwongeli has already intimated to this court that she is a business woman making a living out of selling electronics and earning a good amount of money. She stated that any amount that is advanced to her can be refunded in case of a successful appeal by the applicant.

30. It is an admission of the deponent that Saham Insurance is the Appellants’ insurance. Further, that the motor vehicle that was involved in the accident that is subject of this suit had a prevailing, valid insurance policy. The general nature of the insurance industry is the pooling of funds by an insurance company to enable provision of financial relief and protection to the insured persons as and when claims arise against them. This is done by providing a financial cushion for the losses and inconveniences occasioned by the insured.

31. The Appellant insurance will only be doing what pertains to its general business and daily activities in paying the decretal amount to the Appellant. It is the Respondents’ submission that paying out claims can neither result in substantial loss, nor public embarrassment.

32. It should be noted that the Defendants (now Appellants) in Kilungu SRMCC No. 188 of 2017 had entered into consent on liability in the ratio 80:20 in favor of the Respondent. The matter was subsequently settled to finality. The bone of contention that has consequently arisen is purely on the amount awarded in regard to loss of expectation of life and loss of dependency. The principal issue has already been settled. There is no dispute that the Respondent is entitled to compensation for damages arising out of the accident. This therefore means that the Appellant ought to be able to enjoy some kind of reprieve from the decision in the lower court matter. In MACHIRA T/A MACHIRA & CO. ADVOCATES –VS- EAST AFRICAN STANDARD (NO.2) (2002) KLR 63 it was held that:

“Theordinary principle is that a successful party is entitled to the fruits of his judgment or of any decision of the court giving him success at any stage. That is trite knowledge and is one of the fundamental procedural values which is acknowledged and normally must be put into effect by the way which is acknowledged and normally must be put into effect by the way applications for stay of further proceedings or execution, pending appeal are handled. In the application of that ordinary principle, the court must have its sight firmly fixed on upholding the overriding objective of the Rules of procedure for handling civil cases in courts, which is to do justice in accordance with the law and to prevent abuse of the process of the court”.

33. Reference is also made to the case of WINFRED NYAWIRA MAINA –VS- PETERSON ONYIEGO GICHANA (2015) EKLR where it was held:

“The Substantial loss under Order 42 Rule 6 of the Civil Procedure Rules especially where money decree is involved lie in the inability of the Respondent to pay back the decretal sum should the appeal succeed. The legal burden of proving this inability lies with the Applicant and it does not shift”.

34. Further, it is the Respondent’s submission that Victoria Mwongeli Kimwalu is a widow and has suffered tremendously since the death of the deceased in this matter. This court ought to take into contemplation the fact that she has children to raise and requires school fees as well as money for other recurrent needs of the children.

35. This court should also consider that any order that is given in a bid to make longer the time within which the Respondents will have to await reprieve will be highly disadvantageous to the Respondents. InABSALOM DOVA –VS- TARBO TRANSPORTERS (2013) eKLR the court stated that

“The discretionary relief of stay of execution pending appeal is designed on the basis that no one would be worse off by virtue of an order of the court; as such order does not introduce any disadvantage, but administers the justice that the case deserves. This is in recognition that both parties have rights; the Appellant to his appeal which included the prospects that the appeal will not be rendered nugatory; and the decree holder to the decree which includes full benefits under the decree. The court in balancing the two competing rights focuses on their reconciliation which is not a question of discrimination”.

36. WHETHER ADEQUATE SECURITY HAS BEEN FURNISHED. As earlier stated the respondent submits that, the Appellants/Applicants have failed to demonstrate to this court that Respondents shall be unable to refund the decretal amount if paid out to them. Similarly, they have refused to offer any amount towards this court in order to put some faith in the Respondents that they shall enjoy the earlier decree. In MACHIRA T/A & Co. ADVOCATES –VS- EAST AFRICAN STANDARD (NO.2) (2002) KLR 63 & MARY MWAKI MASINDE –VS- COUNTY GOVERNMENT OF VIHIGA & 2 OTHERS (2015) eKLR it was held that:-

“The requirement for furnishing security is aimed at cushioning the successful litigant that should the appeal fail, there would be no difficulty in enforcing the order or executing the decree. The Applicant has not offered any security and has not even stated that it is willing to provide security should the court order for provision of such security. The Applicant has come to court as though stay of execution will be granted as a matter of course ………… the readiness of the Applicant to provide security that shows the element of good faith on the part that Applicant in seeking the court’s exercise of discretion. The Respondent has even said that the Applicant is interested in the delaying payment and that is why it has not offered security”.

37. The Respondents thus urge court that, they are entitled to an expeditious disposal of the case. They need to be assured that, as the Applicant is allowed to pursue their appeal, and as time progresses, they will still be able to appreciate the fruits of their judgment, if the Appeal fails. Hence, it is an issue of balancing the scale in favor of both the Appellants and the Respondents.

38. The primary suit having been partially settled by way of consent on liability in the ratio 80:20 with the Defendant (now Appellant/Applicant) bearing 80% it is clear that a substantial amount should be paid directly to the Respondent as part of the conditions for security to be provided.

39. Should the court deem it fit to allow the application, the Respondents pray that this court do compel the Applicant to pay two thirds (2/3) of the decretal amount Kshs.2,746,666. 00 into the Respondents bank account together with costs for the suit in Lower Court while the remaining third (1/3) of the decretal amount is deposited into a joint interest earning account held between the advocates for both the Appellants and Respondents.

40. After going through pleadings and the submissions by the parties , I find the issues are;

ISSUES

41. Whether the application has merit if yes what are the terms of the stay order?

42. Order 42 Rules 6 of the Civil Procedure Rules, 2010. Basically, the Defendant/Applicant is required to demonstrate that:

Substantial loss may result unless the order is made; The application has been made without unreasonable delay; Such security as the court orders for the due performance of the decree has been given before the applicant.

43. On whether the applicant will suffer Substantial loss or may result unless the order is made; the applicant submit that the Judgement sum at Kshs.3,296,000. 00/= is colossal and in the event Stay of Execution pending Appeal is not granted, the Respondent will not afford and will not be able to refund the Applicant the same monies due to her financial status in the event the Applicant is successful in the Appeal.

44. The Respondent in her evidence in the Trial Court did inform the court that she used to rely on the support of her deceased husband which she lost on his demise. The respondent has not rebutted that averment by a mode of showing her ability to refund the amount in event the appeal succeeds.

45. On WHETHER THE APPLICATION WAS BROUGHT WITHOUT UNDUE DELAY. The judgement in the lower court matter Kilungu SRMCC No. 188 of 2017 was delivered on 27th July, 2017. The application herein was filed on 25th August 2017. This is a time span of less than 30 days .The court finds same not inordinate delay in the circumstances of the instant case.

46. On Security: The Applicant submit that he is willing to offer security for the due performance of such decree or order as may be ultimately binding on the Applicant and the Applicant has undertaken to issue an Insurance Bond to secure the decretal sum.

47. The respond rejoinder is that, should the court deem it fit to allow the application, the Respondents pray that this court do compel the Applicant to pay two thirds (2/3) of the decretal amount Kshs.2,746,666. 00 into the Respondents bank account together with costs for the suit in Lower Court while the remaining third (1/3) of the decretal amount is deposited into a joint interest earning account held between the advocates for both the Appellants and Respondents.

48. In support of the order for security, reference is made to the case ofKENYA COMMERCIAL BANK LTD -VS- SUN CITY PROPERTIES LTD & 50 OTHERSwhere Mabeya J., stated:-

“…………..In an application for stay, there are always two competing interests that must be considered. These are that a successful litigant should not be denied the fruits of his judgment and that an unsuccessful litigant exercising his undoubted right of appeal should be safeguarded from his appeal being rendered nugatory. These two competing interests should be balanced. In a bid to balance the two competing interests, the courts usually make an order for suitable security for due performance of the decree as the parties wait for outcome of the appeal. ………..….”

49. In exercise of the discretion, this court finds that the complaint by appellant is principally on the quantum of the award. The same implies that even if the appeal succeeds, the end result will be to prune the trial court award. Doing the best I can, I thus make the following orders;

50. The stay of execution pending appeal is granted on the following conditions-

I. Kshs. 1,648,000 being 50% or thereabout of the award to be paid to the respondent within 30 days from date herein.

II. In default the application will stand dismissed and the execution to proceed.

III. Costs in the main cause.

SIGNED, DATED AND DELIVERED THIS 4TH DAY OCTOBER, 2017 IN OPEN COURT.

C. KARIUKI

JUDGE

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