[2022] KEHC 13936 (KLR)

Ekirapa & another (Suing as Legal Representatives of the Estate of Jacob Ekirapa Okisegere - Deceased) v Abdi & another (Civil Suit 10 of 2016) [2022] KEHC 13936 (KLR) (7 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13936 (KLR)

Republic of Kenya

In the High Court at Bungoma

Civil Suit 10 of 2016

SN Riechi, J

October 7, 2022

Between

Doreen Koki Ekirapa

1st Plaintiff

Simon Okiya Okisegere

2nd Plaintiff

Suing as Legal Representatives of the Estate of Jacob Ekirapa Okisegere - Deceased

and

Abdifatah Abdi

1st Defendant

Christopher Mclean

2nd Defendant

Ruling

1. By an application dated 13th June, 2022 brought under the provisions of Order 42 Rule 6 and 7, Order 51 Rule 1 of the Civil Procedure Rules, Sections 3 and 3A of the Civil Procedure Act, the applicant seeks the following prayers in the main;1. There be stay of execution of the decree in this suit pending the hearing and determination of an appeal against the same.2. The court be pleased to grant temporary stay orders pending the hearing and determination of this application inter-partes and or further orders of the court.3. Such other orders be made as are just and expedient.4. Costs be in the cause.

2. The application is based on the grounds on the face of the motion and the affidavit of C.K Kirui learned counsel appearing of the applicant. The background leading to the filing of the application is that this court rendered its judgement in the matter on 11th May, 2022 in favour of the respondent in the sum of Kshs 12, 615, 680/= and the applicant now wishes to appeal against the judgement on both liability and quantum. That the insurer has already paid the sum of Kshs 3,000,000/- to the respondent and is thus discharged from liability and therefore opted not to appeal against the judgement thus the intended appeal is preferred by the applicant. That the sum outstanding and remaining unpaid to date is Kshs 9, 615, 680/=.

3. Counsel depones that the sums of money already paid is sufficient security and that if the orders sought herein are not granted, the appeal will be rendered academic.

4. The application is opposed by way of a replying affidavit sworn on 21st June, 2022 by Mr. Kundu learned counsel for the respondent. He depones that the first 2 cheques issued by the insurer bounced for insufficiency of funds and the respondent is apprehensive that even if they bank the remaining cheques, they will suffer the same fate as the initial two. That the cheques having bounced, the sum of Kshs 3,000,000/- allegedly paid remains unpaid to date.

5. Counsel depones that if the court is inclined to grant stay of execution, the decretal sum should be deposited in a joint interest earning account. That the respondent is a businesswoman who has means of refunding the decretal sum if ordered so to do.

6. The application was disposed of by way of written submissions. The applicant submits on the conditions set under Order 42 Rule 6(2) thus; on the issue that the applicant will be unduly prejudiced and the appeal rendered nugatory, it is submitted that the sum of Kshs 9,615, 680/- is substantial sum which if paid to the respondent, she wouldn’t be in a position to refund as confirmed by the respondent during hearing of the suit that she is not formally employed and depended on the deceased for subsistence. In this regard, reliance has been placed on the cases of Ishmael Kagunyi Tandevs Housing Finance Company of Kenya Ltd (2005)eKLR, National Industrial Credit Bank Ltd Vs Aquinas Francis Wasike & another (2006) eKLR, Housing Finance Company of Kenya Vs Sharok Kher Mohamed Ali Hirji (2015) eKLR and David Omwenga Maobe Vs john Teleyio Ole Sawoyo (2009)eKLR.

7. On the second condition namely; the application has been brought expeditiously and without undue delay, counsel submits that judgement was delivered on 11th May, 2022, Notice of Appeal was filed on 7th June, 2022 and the instant application filed on 13th June, 2022. That as such, the application was brought after only 31 days from the date of judgement thus the application was filed timeously.

8. On whether the appeal is arguable, counsel submits that the draft memorandum of appeal sets out the grounds of appeal on both liability and quantum which raise triable issue and ought to be determined on merit. Reliance has been placed on Kenya Tea Growers Association & anothervs Kenya Plantation & Agricultural Workers Union 2012) eKLR and University of Nairobi Vs Ricatti Business College of East Africa (2020) eKLR have been cited.

9. On the aspect of security pending appeal, counsel submits that the issue of cheques bouncing has been rectified and it is their prayer that the sum already paid be deemed sufficient security pending appeal. That the order for deposit of security is discretionary and the court has the power how security is to be paid pending appeal. The cases of Jamii Bora Bank Limited & another Vs Samuel Wambugu Ndirangu (Civil Appeal E030 of 2021-Nyeri ) and Arun C. Sharma Vs Ashana Raikundaliat/aRaikundalia & Co. Advocates & 2 others (2014)eKLR have been cited in support.

10. In their brief submissions, the respondents contend that out of the 3,000,000/- that ought to have been paid by the insurer, only Kshs 1,000,000/- has been paid leaving an outstanding balance of Kshs 2,000,000/-. That the applicant has not demonstrated how it intends to liquidate the remaining sum of Kshs 9, 615, 680/- and stay cannot therefore be granted on the basis that the sum already paid constitutes sufficient security. Counsel submits that it is imperative that the sum be deposited in a joint account. In support of their submissions, the case of Antoine Ndiaye Vs African Virtual University (2015) eKLR

11. The application herein presents only issue for determination; whether the applicant is entitled to the orders sought. It is trite law that applications of such nature are governed by the provisions of Order 42 Rule 6(2) which provides;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.

12. A reading of the rule shows that for an applicant to be granted orders of stay, the following conditions must be satisfied and or established; 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.

13. On the limb of substantial loss, it is the applicant’s case that he stands to suffer irreparable loss and damage if execution is not stayed. Although the applicant has not established the specific instances or scenarios in which he stands to suffer the loss, it is the duty of the court to balance the rights of the parties to see that justice has been done to all at the end of the day. What is alleged is that the respondent is a person of straw with no formal employment who if paid the entire decretal sum, will not be able to refund the sum if the appeal is finally successful. The court takes note of the fact that the process of execution has not commenced as yet.

14. The term substantial loss has been given several interpretations by the courts, in Rhoda Mukuma v John Abuoga(1988) eKLR, it was held;substantial loss is the cornerstone of both jurisdictions. That is what has to be prevented, because such loss would render the appeal nugatory. Therefore it is necessary to preserve the status quo.

15. Similarly, in Kenya Shell Limited vs. Kibiru [1986] KLR 410, at page 417, the court in holding that the allegation that the decretal sum is colossal and the respondent has not demonstrated means of repaying, it was held;It is not sufficient by merely stating that the sum of Shs 20,380. 00 is a lot of money and the applicant would suffer loss if the money is paid. What sort of loss would this be? In an application of this nature, the applicant should show the damages it would suffer if the order for stay is not granted. By granting a stay would mean that status quo should remain as it were before judgement. What assurance can there be of appeal succeeding? On the other hand, granting the stay would be denying a successful litigant of the fruits of his judgement.

16. In the matter herein, the applicant’s main reason is that the respondent has no known formal employment and she had testified that she depended on the deceased for her upkeep.

17. What the court ought to do in such circumstances is to balance the parties’ rights as was held in Kenya Commercial Bank Ltd –vs- Sun City Properties Ltd & 5 Others [2012] eKLR that:In an application for stay, there are always two competing interest 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 always be balanced.

18. I am not satisfied that the applicant herein has brought out clearly how its stands to suffer loss. The averments herein that the sum of money involved is colossal does not in view constitute loss noting that the respondent is entitled to the fruits of the judgement.

19. However, these limbs ought to be read collectively as opposed to in isolation of the other so that even if one of the limbs is not proved, the applicant cannot be simply denied the right of stay pending appeal.

20. The second limb, that is; the application has been filed without unreasonable delay, both parties concede to the fact that the application was filed timeously and the limb is hereby dispensed with in my analysis.

21. On the issue of security for the due performance of the decree, I find that the parties had by consent agreed on the mode of payment of Kshs 3,000,000/-. There is contention however on the exact amount paid because it appears some cheques were dishonoured. The applicant also wishes the amount so paid to be taken as sufficient security. From the evidence on record, there is the outstanding balance of Kshs 9, 615, 680/- which has not been paid assuming that all the cheques have been paid.

22. Be that as it may, in the interest of justice and in the spirit of doing fairness to all the parties, I do not think that the applicant’s contention that the sums already paid be taken and or deemed sufficient security is not merited. What the law contemplates is security to cover the entire decretal sum though I am alive to the fact that the court has discretion in determining the manner in which the security has to be furnished.

23. Taking all the circumstances of the matter into account, an order of stay of execution is hereby granted on condition that the sum of Kshs 4, 807, 840/- is paid to the respondent and the other half be deposited in a joint interest earning account in the names both counsel within 30 days from the date hereof failing of which the orders herein lapse.

DATED AT BUNGOMA THIS 7TH DAY OF OCTOBER, 2022. S. N. RIECHIJUDGE