[2022] KEHC 1785 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

CIVIL APPEAL NUMBER 107 OF 2021

DOMINIC WAMUGI NDERI.......APPELLANT/APPLICANT

VERSUS

DANIEL OKERI MATUNDA..........................RESPONDENT

R U L I N G

1. The applicant filed the present application dated 19th October , 2021 seeking the following orders that;

(A) Spent

(B) Spent

(C) There be a stay of execution of the decree emanating from the judgement delivered on 22nd September, 2021 in Molo Cmcc No. 56 of 2020 - Daniel Okeri Matunda Vs Dominic Wamugi Nderi pending the hearing and determination of the Appeal.

(D) Costs of this Application be in the cause.

2. The application is premised on the grounds that on 22nd September, 2021, the lower court in Molo CMCC No.56 of 2020 – Daniel Okeri Matunda vs Dominic Wamugi Nderi delivered a judgment awarding the Respondent herein general damages for Pain and Suffering of Kshs. 2 million, Loss of Earning Capacity of Kshs. 800,000/=, Future Medical Costs of Ksh. 1. 2 million and Special Damages of Kshs. 104,030/= plus Costs and Interests from the date of the judgment and apportioned liability in the ratio of 90:10 in favour of Respondent as against the Appellant.

3. That the Appellant faces imminent and real danger of execution by the Respondent to satisfy the decree emanating from the above judgment and that the appellant stands to suffer substantial loss if execution ensues.

4. That an appeal has been lodged in this court by the appellant which has high probability of success and that the appellant is ready and willing to comply with any conditions imposed by this court for stay of execution pending the hearing of the Appeal .

5. That no prejudice will be occasioned to the Respondent if this application is allowed.

6. The Application is supported by an affidavit sworn by the Applicant Dominic Wamugi Nderi. The Applicant’s Supporting Affidavit reiterated the above grounds.

7. In opposing the application, the Respondent Daniel Okeri Matunda swore a Replying Affidavit on 27th October, 2021 in opposing the application for being incompetent, misconceived, bad in law and one for striking out; meant to solely delay the enjoyment of the fruits of his judgment.

8. That the applicant has failed to demonstrate what substantial loss he will suffer if stay is not granted and that undue delay of the payment of the decretal sum will greatly prejudice him as he needs the same in order to undergo treatment.

9. That in any event the appeal has no merit.

10. He prays that should the court be inclined to grant the application, then the appellant should pay half of the decretal sum plus costs and interests and deposit the other half in a joint interest earning account held in the names of both advocates on record in a reputable bank.

11. The parties chose to canvass the application by way of written submissions.

APPLICANT’S SUBMISSIONS

12. The Applicant filed his submissions dated 18th November, 2021 on 25th of November, 2021. He cited order 42 rule 6(2) of the CPR which provides the conditions precedent for the orders sought by the applicant.

13. On whether he would suffer substantial loss, he submitted that the award of Kshs.3, 693,627/= which is manifestly high and disputable. That the respondent being a person of unknown means would not be in a pposition to refund the same if paid to him should the appeal succeed hence rendering it nugatory if it succeeds and causing substantial loss.

14. He relied on the case of Johnson Mwiruti Mburu Vs. Samuel Machari Ngure [2004] eKLR where the court stated that substantial loss could result to the applicant in view of the possible inability of the respondent to pay.

15. The applicant further argued that the respondent in demanding payment of half the decretal sum plus costs and interests without addressing his means to refund such sums if the instant appeal succeeds is a ground for this court to exercise its discretion in his favour and grant stay of execution pending hearing of appeal so that the appeal is not rendered nugatory. He placed reliance on the case of National Industrial Credit Bank Ltd vs Aquinas Francis Wasike & Another [2006] eKLR where the court while dealing with the same issue stated that;

“..Once an applicant expresses a reasonable fear that the 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 matter which is peculiarly within his knowledge ...”

16. On whether the application was made without unreasonable delay, the applicant submitted that the lower court judgment was delivered on 22nd September, 2021, he lodged the appeal on 6th October 2021 and filed this application on 19th October 2021 while the thirty (30) days stay of execution that was granted by the lower court after delivery of its judgement was still in force.

17. On the issue of security for the due performance of the decree, the applicant submitted that he is ready and willing to comply with any conditions imposed by this Honorable Court for stay of execution pending hearing and determination of the appeal.

RESPONDENT’S SUBMISSIONS

18. The Respondent’s submissions dated 24th November, 2021 were filed on 26th November, 2021.

19. The Respondent submitted that for stay of execution to be granted the applicant must satisfy the conditions set out under order 46 Rule 6(2) of the Civil Procedure rules 2010.

20. It was the respondent’s submissions that the Applicant herein failed to demonstrate what substantial loss he would suffer should execution ensue. He cited the case of James Wangalwa & Another Vs. Agnes Naliaka Cheseto [2012] eKLR where it was held that that 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 does not amount to substantial loss under order 42 Rule 6 of the Civil Procedure Rules because execution is a lawful process. That the applicant must establish other factors which show that 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.

21. He also relied on the case of Antoine Ndiaye vs African Virtual University [2015] eKLR where the court stated that the onus of proving substantial loss and the inability of the respondent to pay the decretal sum if the appeal is successful lay with the Applicant, who is required to place real and cogent evidence before the court to prove that the respondent would be unable to refund the decretal sum should the appeal succeed.

22. And the case of Machira T/A Machira & Co. Advocates vs East African Standard (NO.2)[2002] KLR 63 where the court stated that the applicant must prove specific details and particulars of substantial loss otherwise without demonstrable pecuniary or tangible loss to the satisfaction of the court, the court will not grant stay.

23. The respondent conceded that the instant application was filed timeously.

24. On the issue of security the respondent submitted the applicant had committed to complying with any conditions issued by court if the court was inclined to grant stay pending hearing of the appeal, the conditions should include an order for the applicant to pay half of the decretal sum plus costs and interests and to deposit the other half in a joint interest earning account held in the name of both advocates on record in a reputable bank.

ISSUES FOR DETERMINATION

Whether the Applicant has met the prerequisites for grant of stay of execution pending determination of an Appeal as envisaged under Order 42 Rule 6.

ANALYSIS

25. Order 42 rule 6(2) of the Civil Procedure Rules 2010 states;

“(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.”

Substantial loss

26. The applicant is expected to establish with evidence the substantial loss that the applicant will suffer should the stay not be granted. Other that the fear that the respondent would not be able to refund the money if paid, the applicant has not placed any evidence of the alleged substantial loss. That head is not established.

27. With regard to the expressed fear, the burden of proof on whether the respondent will be able to reimburse the decretal sum falls on him upon any concerns raised by the Applicant that he is unable to do the same. This is supported by the holding in National Industrial Credit Bank Ltd vs Aquinas Francis Wasike & another[2006] eKLR where the court held;

“..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.”

28. In Swapan Sadhan Bose vs Ketan Surenda Samaia & Others(2006) eKLR it was stated as follows;

“This Court has said before and would bear repeating that while the legal duty is on the 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 the 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.”

29. The submission that the respondent may not be in a position to refund the decretal sum in the event the appeal succeeds is uncontroverted. The respondent did not demonstrate his financial capability.

Whether the application was made without unreasonable delay

30. It is not in dispute that the application was filed timeously.

Security

31. The applicant in his Supporting Affidavit deponed that he is ready and willing to comply with the conditions imposed by this Honorable court for stay of execution pending hearing and determination of the appeal.

32. There is therefore willingness to offer security as a condition precedent for stay of execution pending appeal.

33. In considering the conditions, I will take into consideration that upon perusal of the Judgment I noted that the defendant/appellant had submitted that the respondent could be awarded Kshs. 2 million in general damages, while the respondent submitted for Kshs. 5 Million.

34. Ultimately the grant the orders of stay is an exercise of the court’s discretionary orders. However, the Court should balance the Parties’ competing interests i.e. that a successful litigant should enjoy the fruits of the judgment and at the same time allow an aggrieved party to exercise his right of Appeal. In the circumstances of this case the application for stay pending appeal is allowed in the following terms.

1. The Appellant/Applicant to pay the Respondent a third of the decretal sum of Kshs. 1,231,209/=.

2. The Appellant/Applicant to deposit the balance in an interest earning account in the joint names of the parties’ advocates.

3. Order 1 and 2 be complied within (45) days from the date of this ruling in default of either the stay shall lapse.

4. The costs of the application to abide in the appeal.

DATED, SIGNED AND DELIVERED VIRTUALLY 3RD DAY OF MARCH 2022.

MUMBUA T MATHEKA

JUDGE

In the presence of;

Court Assistant Lepikas

E. M. Juma & Ombui Advocates for the respondents N/A

emjuaadvocates@gmail.com

Kiruki & Kayika Advocates for the Appellant/Applicant N/A

info@kirukikayika.co.ke