[2022] KEHC 10517 (KLR)

Gateri & another v Gathura & another (Civil Appeal E741 of 2021) [2022] KEHC 10517 (KLR) (Civ) (17 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10517 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E741 of 2021

JK Sergon, J

June 17, 2022

Between

Peter Mukiri Gateri

1st Applicant

Pemuga Auto Spares Ltd

2nd Applicant

and

Winfred W. Gathura

1st Respondent

Martin Nginjiri Taiti

2nd Respondent

Ruling

1. This ruling relates to the Notice of Motion dated 15th November, 2021 taken out by the 1st and 2nd appellants/applicants and is supported by the grounds set out on its body and the facts stated in the affidavit of the 1st applicant.

2. The order being sought is an order for stay of proceedings in Milimani CMCC No. 3377 of 2018 pending the hearing and determination of the appeal against the ruling delivered by the trial court on 5th November, 2021 by the trial court.

3. The applicants also sought for an alternative order for stay of execution of the judgment delivered on 25th September, 2020 in the above case, pending appeal.

4. The 1st respondent swore a replying affidavit on 7th December, 2021 to oppose the Motion.

5. It is apparent that at the hearing of the Motion, the parties had been engaged in negotiations on recording a consent on the provision of security but which negotiations collapsed. The parties did not make any additional arguments or file any written submissions in respect to the Motion.

6. I have considered the grounds stated on the body of the Motion; and the facts deponed in the rival affidavits.

7. From the averments made by the parties, it is apparent that the applicants opted to pursue the order for a stay of execution pending appeal and abandoned the order for stay of proceedings.

8. The guiding provision on an order for a stay of execution is Order 42, Rule 6(2) of the Civil Procedure Rules which sets out the following conditions in determining an application of such nature.

9. The first condition provides that the application must have been made without unreasonable delay. Upon my perusal of the record, I note that none of the parties specifically addressed me on this condition.

10. From my perusal of the record, it is apparent that whereas the judgment and decree whose execution is sought to be stayed was issued on 25th September, 2020, the intended appeal lies against the ruling delivered on 5th November, 2021 arising out of the aforementioned judgment.

11. I note that the instant Motion was brought about 10 days from the date of delivery of the impugned ruling. In my view, there has been no unreasonable delay in bringing the Motion.

12. The second condition touches on the subject of substantial loss to be suffered by an applicant.

13. On the part of the applicants, it is stated that unless an order for a stay of execution is granted, the respondents will likely move to execute the decree, thereby paralyzing their business. The applicants further state that part of the decree sought to be executed is illegal and hence they stand to be gravely prejudiced.

14. The respondents have retorted by stating that no substantial loss has been demonstrated by the applicants since the instant Motion is merely aimed at frustrating the execution process, and by further stating that there is nothing to show that they will not be in a position to refund the decretal amount to the applicants in the event that the appeal succeeds.

15. The legal position is that execution is a lawful process and hence a party cannot simply argue that a stay of execution is necessary in order to halt or prevent execution. It is on this basis that the court in the case of James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR rendered itself thus:“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. This is what substantial loss would entail…”

16. Upon my perusal of the record, I note that the decretal sum which is said to stand at the sum of Kshs.4,800,000/= is fairly colossal in nature.

17. In the absence of any credible evidence tendered to indicate or ascertain the respondents’ current financial standing and ability to refund the aforementioned decretal sum, I am satisfied on the likelihood of substantial loss resulting to the applicants if the order for a stay of execution be denied.

18. Under the final condition which is the provision of security for the due performance of a decree or order, none of the parties made any suggestions on the same and left it to the court to give its directions.

19. Upon considering the decretal amount in question, I am of the view that an order for deposit of the same in a joint interest earning account would constitute the most suitable mode of provision of security.

20. Consequently, the Motion dated 15th November, 2021 partially succeeds, giving rise to issuance of the following orders:i. There shall be a stay of execution of the judgment delivered on 25th September, 2020 on the condition that the applicants deposit the entire decretal sum in an interest earning account in the joint names of the parties’ advocates/firm of advocates within 45 days failing which the order for stay shall automatically lapse.ii. Costs of the application to abide the outcome of the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 17TH DAY OF JUNE, 2022. ...............................J. K. SERGONJUDGEIn the presence of:...................... for the 1st and 2nd Appellants/Applicants...................... for the 1st and 2nd Respondents