[2024] KEHC 10930 (KLR)

Gakere & another v Kiromo (Civil Appeal E018 of 2024) [2024] KEHC 10930 (KLR) (20 September 2024) (Ruling)

Neutral citation: [2024] KEHC 10930 (KLR)

Republic of Kenya

In the High Court at Nyeri

Civil Appeal E018 of 2024

MA Odero, J

September 20, 2024

Between

Mathew Ngugi Gakere

1st Appellant

George Makumi Maina

2nd Appellant

and

Julius Kahiuhu Kiromo

Respondent

Ruling

1. Before this court for determination is the Notice of Motion dated 12th April 2024 in which the Applicant/Appellants Mathew Ngugi Gakere and George Makumi Maina seek the following orders:-“1. Spent2. Spent3. That the Honourable Court be pleased to order a stay of execution of any and all proceedings and of the Judgment/Decree issued on 27th March 2024 by the Honourable Senior Resident Magistrate Hon. M. N Lubia in Nyeri CMCC E003 of 2022 Julius Kahiuhu Kiromo -vs- Mathew Ngugi Gakere & George Makumi Maina pending the full hearing and determination of the Appellant’s/Applicants Appeal.4. Spent5. That the costs of this Application abide the outcome of the Appeal.”

2. The application which was premised upon order 22, Rule 22, Order 42, Rules 4 and 6, Order 50 Rule 4, Order 51 Rule 1 of the Civil Procedure Rules 2010 Sections 3, 3A and 100 of the Civil Procedure Act and all other enabling provisions of Law was supported by the Affidavit of even date sworn by the 1st Applicant.

3. The Respondent Julius Kahiuhu Kiromo filed the Replying Affidavit dated 22nd May 2024 opposing the application. The matter was canvassed by way of written submissions. The Applicants filed the written submissions dated 28th June 2024.

4. This application for stay of execution arises from the judgement delivered on 27th March 2024 by the lower Court in Nyeri CMCC No. E003 of 2022. In said judgment the learned trial court found in favour of the plaintiff and awarded total damages amounting to Kshs. 310,842.

5. Being aggrieved by that judgment the Applicants filed the Memorandum of Appeal dated 12th April 2024. They seek a stay of execution of the Judgment pending hearing and determination of their Appeal.

Analysis and Determination 6. I have considered this application, the reply filed thereto as well as the written submissions on record.

7. At this point the court is not required to delve into the merits or otherwise of the intended appeal. All the court has to determine is whether the Application for stay is merited.

8. Stay of Execution pending Appeal is provided for under Order 42 Rule 6 (2) of the Civil Procedure Rules which sets out the principles that the court should consider while deciding whether to grant a stay or not. These are:-“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; andb.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.”

9. From the foregoing, the Applicant should satisfy the court that:(a)Substantial loss may result to him unless the order is made;(b)That the application has been made without unreasonable delay; and(c)The applicant has given such security as the court orders for the due performance of such decree or order as may ultimately be binding on him.

10. The Applicant has stated that the sum of Kshs. 300,000/- is inordinately high and does not conform to awards made for similar injuries. This is what he submits amounts to substantial loss. The Court of Appeal in the case of Kenya Shell Ltd v Kibiru & Another (1986) KLR 410, held that:“Substantial loss in its various forms, is the cornerstone of both jurisdictions for granting stay.”

11. In James Wangalwa & Another v Agness Naliaka Cheseto [2012] eKLR, the court held as follows:-“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… the issue of substantial loss is the cornerstone party in the appeal…. The issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.” [emphasis my own]

12. The Applicant is apprehensive that the award is in breach of the doctrine of ‘stare decisis’ as he states that the award is not uniform in similar cases adjudicated upon by courts. Article 163 (7) of the Constitution provides that“All courts, other than the Supreme Court, are bound by the decisions of the Supreme Court.”

13. The judgment in the lower court was delivered on 27th March 2024. This application for stay was filed on 12th April 2024 a few weeks after delivery of the judgment. In my view the application was field in a timely manner.

14. The Applicant submits that he is likely to suffer substantial loss if the stay sought is not granted. In Tropical Commodiies Suppliers Ltd & Others -vs- International Credit Bank Ltd (In Liquidation) [2004] 2 EA the court stated that“Substantial loss does not represent any particular mathematical formula. Rather it is a qualitative concept. It refers to any loss great or small that is of real worth or value as distinguished from a loss without value or a loss that is merely nominal”

15. In Century Oil Company Ltd vs. Kenya Shell Limited Nairobi (Milimani) HCMCA No. 1561 of 2007 Hon. Justice KIMARU (as he then was) stated that:-“The word “Substantial” cannot mean the ordinary loss to which every judgement debtor is necessarily subjected when he loses his case and is deprived of his property in consequence. That is an element which must occur in every case and since the Code expressly prohibits stay of execution as an ordinary rule it is clear the words “substantial loss” must mean something in addition to all different from that… Where execution of a money decree is sought to be stayed, in considering whether the applicant will suffer substantial loss, the financial position of the applicant and that of the respondent becomes an issue. The court cannot shut its eyes where it appears the possibility is doubtful of the respondent refunding the decretal sum in the event that the applicant is successful in his appeal. The court has to balance the interest of the applicant who is seeking to preserve the status quo pending the hearing of the appeal so that his appeal is not rendered nugatory and the interest of the respondent who is seeking to enjoy the fruits of his judgement.” [own emphasis]

16. Finally there is the issue of security. Order 42 Rule 6 requires that an applicant offer security for the performance of the decree.

17. In Gainfranco Manenthi & another vs. Africa Merchant Assurance Company Ltd [2019] eKLR, it was held that:-“…the applicant must show and meet the condition of payment of security for due performance of the decree. Under this condition a party who seeks the right of appeal from money decree of the lower court for an order of stay must satisfy this condition on security. In this regard, the security for due performance of the decree under order 42 rule 6(1) of the Civil Procedure Rules, it is trite that the winner of litigation should not be denied the opportunity to execute the degree in order to enjoy the fruits of his judgement in case the appeals fails. Further, order 42 should be seen from the point of view that a debt is already owed and due for payment to the successful litigant in a litigation before a court which has delivered the matter in his favour. This is therefore to provide a situation for the court that if the appellant fails to succeed on appeal there could be no return to status quo on the part of the deposited decretal amount to the respondent in the appeal… This the objective of the legal provisions on security was never intended to fetter the right of appeal. It was also put in place to ensure that courts do not assist litigants to delay execution of decrees through filing vexatious and frivolous appeals. In any event, the issue of deposit of security for due performance of decree is not a matter of willingness by the applicant but for the court to determine.”

18. Finally I am satisfied that this application has merit. I do allow the Notice of Motion dated 12th April 2024 and make the following orders1. Execution of the Judgement delivered on 27th March 2024 in Nyeri CMCC No. D003 of 2022 be and is hereby stayed pending hearing and determination of the Appeal filed by the Applicants.Subject To2. The Applicants depositing as security in court a Bank Guarantee in the amount of Kshs. 300,000 only within Twenty one (21) days of todays date.3. In event of failure to comply with (2) above the stay orders will automatically lapse with no further reference to the Applicants.4. Costs of this application to be met by the Applicants.

DATED IN NYERI THIS 20TH DAY OF SEPTEMBER, 2024. …………………………………………MAUREEN A. ODEROJUDGE