[2022] KEHC 1646 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO. 4852 OF 1987

GODFREY NJUKI MBOGO.....................................................................................PLAINTIFF

VERSUS

UNIVERSITY OF NAIROBI STUDENTSACCOMODATION BOARD........DEFENDANT

THE UNIVERSITY OF NAIROBI.........................................................................APPLICANT

RULING

The applicants filed a notice of motion dated 24th June 2021 brought pursuant to Section 1A, 1B and 3A of the Civil Procedure Act Order, 22 Rule 19 (2) and 22(1) and Order 51 Rule 1 of the Civil Procedure Rules, 2010 seeking the following orders;-

1. Spent

2. Spent

3. That this honorable court be pleased to stay the execution of the judgement and decree of the court issued on 28th October 1997 pending the hearing and determination of the applicants intended appeal.

4. That the costs of and occasioned by this application be provided for.

The application was supported by the affidavit of Prof. Enos H. N. Njeru. The applicant stated that the plaintiff filed the suit herein on 8th February 1988 vide a plaint dated 4th December 1987. Judgement was delivered on 3rd may 1988 against the defendant. The applicant was never a party to the proceedings leading up to the judgement but only introduced at the execution stage. The plaintiff through his union took a notice to show cause dated 4th May 2018 against the defendant for the satisfaction of the decretal sum. However, the notice was served upon the applicant instead of the defendant.

The applicant took issue with the service and filed grounds of objection which was heard by Hon. Wandia Nyamu (DR) and by a ruling delivered on 8th May 2020 found that the applicant had not satisfied the court on why execution should not issue and allowed the notice to show cause dated 4th May 2018.

The applicant was aggrieved by the said decision and filed a memorandum of appeal on 15th May 2020. The plaintiff has through its union applied for execution against the applicant and requested for allocation of warrants of attachment and sale for decree dated 13th May 1988 pursuant to the ruling of the honorable deputy registrar delivered on 8th May 2020.

The applicants submitted that they have brought this application principally under the provisions of Order 22 Rule 22 (1) which provides

“The court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay the execution of such decree for a reasonable time to enable the judgment-debtor to apply to the court by which the decree was passed, or to any court having appellate jurisdiction in respect of the decree or the execution thereof, for an order to stay the execution, or for any other order relating to the decree or execution which might have been made by the court of first instance, or appellate court if execution has been issued thereby, or if application for execution has been made thereto.”

It was submitted further that this matter has special and unique circumstances to warrant grant of stay of execution as there is already an appeal pending before this honorable court from the ruling of the honorable deputy registrar, that there is no clarity from the plaintiff on the actual decretal sum owing and that the plaintiff has made an admission that payments were made to him by the applicant and that is clear that the payments were made in full and final settlement of the plaintiffs claim. This is the issue that has to be ventilated at the hearing of the applicants appeal.

The application was opposed by Davis M. Gitonga’s reply dated 12th July 2021. It was stated that the plaintiff approached this court on 4th October 1987 where he blamed the University for not providing him with safe working conditions which led to his subsequent injuries. The university was served with summons on 15th January 1988 but ignored to enter appearance. The court thereafter entered judgement against them asserting that they were the true employers and hence liable to pay. The plaintiff was awarded a sum of Kshs. 475,200 in special and general damages which carry an interest of 12% from the date of judgement. After numerous follow ups from the union on behalf of its member to the management of Nairobi University the applicant drew two cheques drawn on 22nd August 2013 and 18th June 2015 in order to settle the matter. The management did not clear the balance thereafter and consequently continued to accrue interest.

The applicant is bent on denying the plaintiff his award by making this application. That the applicant having been served failed to respond to the claim and judgement was entered against them and cannot therefore claim now that they were not the employers as they had the opportunity to defend the case but filed to do so.

The applicant applied for execution not to proceed but never prosecuted their application, thereafter they were invited to show cause from which it was ruled that they ought to pay. The application herein is just a delay and an abuse of court process.

Analysis and Determination.

The principles guiding the courts in granting or refusing stay of execution are stated in the case of Butt vs Rent Restriction Tribunal [1979], where the court of appeal held that the discretion of the court should be exercised in such a way that it does not prevent an appeal, secondly, so that an appeal is not rendered nugatory, consideration to the special circumstances of each case and finally the court should not refuse a stay for the reason that a better remedy might become available to the applicant at a later stage of the proceedings. Further reliance has been placed on the case of Samvir Trustee Limited vs Guardian Bank Limited Nairobi HCCC 795 of 1997 where Warsame J. reiterated the principles for granting or refusing an application for stay. In Stephen Wanjohi vs Central Glass Industries Ltd, Nairobi HCCC No. 6726 of 1991, the Court identified the conditions that must be established to include; “a) Sufficient cause, b) Substantial loss c) No unreasonable delay d) Security and that the grant of stay is discretionary”.

Judgement in this matter was delivered on 3rd May 1988, the plaintiff filed a notice to show cause dated 4th May 2018 against the defendant for the satisfaction of the decretal sum. However, the notice was served upon the applicant. The applicant thereafter filed grounds of objection which was heard by Hon Wandia Nyamu who in her ruling dated 8th May 2020 found that the applicant had not satisfied why execution should not issue. Having been aggrieved by the said decision they filed an appeal on 15th may 2020 and it is therefore for this reason that they are seeking a stay of execution pending the hearing and determination of the said appeal

The court, in RWW vs. EKW [2019] eKLR, addressed its mind to the purpose of a stay of execution order pending appeal, in the following words:

“The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.

9. Indeed to grant or refuse an application for stay of execution pending appeal is discretionary. The Court when granting the stay however, must balance the interests of the Appellant with those of the Respondent.”

There is the respondent’s contention that the applicant made some payment to satisfy the decretal sum. The applicant annexed a letter dated 7th July 2015 from the firm of Oraro & Co. Advocates forwarding a cheque for Kshs.570,240 to the secretary of Kudheiha Union. The said letter indicates that the payment is in full and final settlement of the claim. Prior to that, on 1st October 2013 the same firm of advocates forwarded a cheque for Kshs.856,360 on 1st October 2013 and it was meant to settle the matter.

I do find that there is need to evaluate the applicant’s appeal before any further execution can be allowed to proceed. Since the applicant has already paid a substantial amount to the respondent which is over and above the amount awarded by the trial court, I do find that it will not be prudent to call upon the applicant to provide security as a condition for allowing the application. The cheque for Kshs.856,360 was in satisfaction of a decree that was issued on 28th October 1997. Two years later, a further sum of Kshs.570,240 was paid.

The supporting affidavit indicate that a Memorandum of Appeal was duly filed and paid for on 15th May, 2020. The appeal is not against the judgment delivered on 28th October 1997 but against the ruling of the court in relation to the notice to show cause delivered on 8th May, 2020. The Memorandum was filed on 15th May, 2020 and this is within the 30 days period provided under Section 79G of the Civil Procedure Act. I do find that the appeal was properly filed.

I am satisfied that the application dated 24th June 2021 is merited and is hereby granted in the following terms:-

1. Execution is hereby stayed pending the hearing and determination of the pending Appeal.

2. The registry to provide the applicant with the appropriate appeal number and open up an appeal file.

3. Costs shall follow the outcome of the appeal.

DATED AND SIGNED AT NAIROBI THIS 14TH DAY OF MARCH,2022

S.J. CHITEMBWE

JUDGE