[2022] KEHC 10784 (KLR)

Eagle Hardware Limited v Lucheli & 2 others (Civil Appeal 36 of 2020) [2022] KEHC 10784 (KLR) (9 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10784 (KLR)

Republic of Kenya

In the High Court at Eldoret

Civil Appeal 36 of 2020

EKO Ogola, J

June 9, 2022

Between

Eagle Hardware Limited

Applicant

and

Tundo Lucheli

1st Respondent

Elijah Mbundo

2nd Respondent

Alginza Automobiles

3rd Respondent

(Being an appeal from Hon. E. Kigen in Eldoret CMCC No.43 of 2012)

Ruling

1. By way of Notice of Motion dated 13th April 2022 the applicant seeks the following orders;a.Spentb.Spentc.This honourable court be pleased to set aside the orders of the Honourable E. Kigen, Senior Resident Magistrate in Eldoret CMCC No. 43 of 2012 made on 18/3/2022 granting stay of execution pending determination of the appeal on condition that the applicant pays half the decretal amount to the plaintiff’s counsel and the other half be deposited in a joint interest earning account within 30 days in the name of both counsel on record.d.This honourable court be pleased to set aside the orders of the Honourable E. Kigen, Senior Resident Magistrate in Eldoret CMCC No. 43 of 2012 on condition that half of the decretal amount that has been paid by the 2nd respondent be taken into account and the other half to be paid by the 2nd respondent and/or be deposited into a joint interest earning account within 30 days in the name of both counsel on record pending the hearing and determination of this application.e.In the alternative this honourable court be pleased to grant stay of execution in Eldoret CMCC No. 43 of 2012 on condition that half of the decretal amount that has been paid by the 2nd respondent be taken into account and the other half to be paid by the 2nd respondent and/or be deposited into a joint interest earning account within 30 days in the name of both counsel on record pending the hearing and determination of this application.f.This honourable court be pleased to grant stay of execution in Eldoret CMCC No. 43 of 2012 on condition that half of the decretal amount that has been paid by the 2nd respondent be taken into account and the other half to be paid by the 2nd respondent and/or be deposited into a joint interest earning account within 30 days in the name of both counsel on record pending the hearing and determination of this appeal.g.In the alternative this honourable court be pleased to grant stay of execution in Eldoret CMCC No. 43 of 2012 on condition that half of the decretal amount that has been paid by the 2nd respondent be taken into account and the other half to be paid by the 2nd respondent and/or be deposited into a joint interest earning account within 30 days in the name of both counsel on record pending the hearing and determination of this appeal.

2. The application is based on the grounds set out therein and the affidavit in support of thereof.

3. The facts leading up to the application are that the respondent instituted a suit in the lower court seeking general damages, special damages at kshs. 6,100 and costs of the suit. The matter proceeded to full trial and the trial court delivered judgment against the appellant and the 2nd respondent. the appellant being dissatisfied with the decision of the court instituted the present appeal.

4. The applicant filed submissions on 16th May 2022. It is the applicant’s case that while granting conditional stay the trial court did not account for the fact that the insurance company had satisfied half the award. The part of the ruling requiring the appellant deposit half of the decretal amount in a joint interest earning account is impossible to execute. The question would be; what happens to the kshs. 327,000/- the insurance company had paid.

5. The applicant contends that it is alive to the conditions for stay under Order 42 Rule 6 (2) and that the application meets the conditions for stay save for the 3rd condition on security, which the court is invited to intervene about and give proper directions.

6. The 1st respondent filed submissions on 16th May 2022. It is the respondents’ contention that the applicant has not demonstrated the substantial loss he is likely to suffer if stay is not granted. He cited the case of Nobel Trading Co. Ltd & 2 Others v Peter Odhiambo, Civil Appeal No. 49 of 2022 eKLR where the court ruled that;The applicants were to comply with the objectives of the lower court before stay could be granted at the High Court.

7. The respondent stated that the applicant had sought stay of execution on 11th December 2020 which application was granted vide a ruling dated 18th March 2020. The learned magistrate granted the stay subject to the condition that the applicant pay half the decretal amount to be deposited in a joint interest earning account in the names of the parties’ advocates. To date, the applicant has never fulfilled the condition. The applicant has not demonstrated substantial loss. The respondent cited the case of Winfred Nyawira Maina v Peterson Onyiego Gichana (2015) eKLR where the court held;‘’The applicant has not shown sufficient cause and preponderantly, that, if its appeal succeeds, it will suffer substantial loss unless stay is ordered.’’

8. In the event the application is allowed, the respondent contends that the applicant should comply with the magistrates’ order by depositing half the amount. He urged the court to dismiss the application with costs.

9. The only issue for determination is whether the application has merit.

10. Order 42 Rule 6 (2) of theCivil Procedure Rules states;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.

11. The trial court delivered its ruling on 18th March 2022, the present application was filed on 13th April 2022. I find that the application was filed without undue delay.

12. With regard to substantial loss, it is my view that the applicant is apprehensive of execution which may result in substantial loss. I take cognizance of the fact that the trial court considered the same in granting the initial orders for stay.

13. Given that the trial court had given conditional stay orders, it is evident that the bone of contention is whether the insurance payment should be considered as payment of half the decretal sum and consequently, compliance with the orders. A reading of the ruling reveals that the court had indeed directed the appellant to pay half the decretal sum to the plaintiff/1st Respondent’s counsel and deposit half the decretal sum in a joint interest earning account in the name of the parties’ advocates.

14. I have observed annexure MGP4 (a) and (b) and it is evident that the insurance company had paid half the decretal sum to the 1st Respondent on behalf of the applicant. The same was settled on 3rd September 2021 and the 1st respondent acknowledged this fact in his replying affidavit.

15. In the end, the application succeeds in terms of prayer (e) as follows:In the alternative this honourable court be pleased to grant stay of execution in Eldoret CMCC No.43 of 2012 on condition that half of the decretal amount that has been paid by the 2nd respondent be taken into account and the other half to be paid by the 2nd respondent and/or be deposited into a joint interest earning account within 30 days in the name of both counsel on record pending the hearing and determination of this application.

16. Costs in the cause.

DATED, SIGNED AND DELIVERED ON 9TH OF JUNE 2022. E. K. OGOLAJUDGE