[2022] KEHC 15055 (KLR)

Ikhlas Auto Trading Limited & another v Ouko (Civil Appeal E210 of 2021) [2022] KEHC 15055 (KLR) (Civ) (10 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15055 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E210 of 2021

JN Mulwa, J

November 10, 2022

Between

Ikhlas Auto Trading Limited

1st Applicant

Justus Omandi Orenge

2nd Applicant

and

James Okello Ouko

Respondent

Ruling

1. Judgement of the trial court was delivered on the 16th of April 2021 against the appellants, who being dissatisfied with the awards granted to the respondent filed this appeal by a memorandum of appeal dated April 20, 2021 and filed on even date.The main grievance by the appellants is the award on general damages of Kshs 1,350,000, special damages of Kshs 102,523, loss of earning capacity at Kshs 663,000 and future medical expenses at Kshs 75,000 as being too high and excessive.

2. By an application dated April 20, 2021, the appellants sought orders of stay of further execution of proceedings in the case; CMCC No. 2419 of 2019 pending hearing and determination of the appeal. The application is grounded on the supporting affidavit sworn on the 20th of April 2022 by the senior by the senior claims Manager at Direct Line Insurance Company Limited the insurer of the accident vehicle; and further by written submissions filed on the October 8, 2022.

3. The respondent, despite being served with the application, and being directed to file the replying affidavit within 14 days from the 28th of July 2022, I note that no response has been filed as at 3rd November 2022, hence the application dated April 20, 2022 stands unopposed.

4. I have considered the application and the legal provisions upon which it is based and the submissions. There is already filed a memorandum of appeal, but the record of appeal is yet to be filed.

5. Order 42 rule 6(2) of the Civil Procedure Rules 2010 underpins the conditions upon which an applicant must comply with and demonstrate to be granted an order of stay of execution pending appeal, that:a.Sufficient security as the court may determine for the due performance of the decree.b.That substantial loss if the order of stay is derived must be demonstrated, and that the appeal may be rendered nugatory.c.That arguability of the appeal also has to be demonstrated.

6. The appeal is a money judgment in the sum of Kshs. 2,190,523/-. Substantial loss is the cornerstone in an application for stay of execution pending appeal. The burden of proving such loss lies with the applicant. In National Industrial Credit Bank Limited Vs. Aquinos Francis Wasike &another (2006) e KLR, the court held that the applicant must prove substantial loss either through difficulty in satisfying the decree or loss, by the inability by the adverse party to refund, if the appeal succeeds.

7. At Kenya ShellvsKibiru &another (1986) KLR 410, the court rendered that:“…….an intended appeal does not operate as a stay……if there is no evidence of substantial loss, it would be a rare case when an appeal would be rendered nugatory by some other event……. therefore without this evidence, it is difficult to see why the respondents should be kept out of their money….”

8. By the supporting affidavit, the applicant has not stated that the respondent would be unable to pay back the decretal sum should the appeal be successful. Stating that if stay orders are not granted, the respondent would execute the decree is not sufficient as execution of a lawful decree is well within the law; and further that, filing of an appeal cannot be construed to mean an automatic stay of execution.

9. As to the arguability of the appeal, the law is settled that, the applicant needs only to show that he has an arguable appeal, but not to prove the same. This ordinarily is deduced from the grounds of the appeal as against the judgment or decree – see Bake N Bite (Nairobi) LimitedvsDaniel Mutisya Mwalonzi (2015) e KLR. Without a copy of the impugned judgment being provided to the court, it is not possible to undertake the above exercise. Tabulation of the awards by the trial court says nothing as far as deciding whether or not the appellant has an arguable appeal.Despite the above, the applicant is willing and ready to offer reasonable security, and proposes to offer a bank guarantee for the entire decretal sum from Diamond Trust Bank Limited.

10. I have considered that the application is unopposed but which status does not give the applicant a blanket advantage over the respondent; as it must prove to the satisfaction of the court the three main requirements under order 42 rule 6 Civil Procedure Rule. Under section 3A of the Civil Procedure Act, the court has an inherent discretion to do justice so as to avoid injustice or hardship to either of the parties, and as to when and in what circumstances a court should exercise its discretion – Esther Wamaitha Njihia & 2othersvsSafaricom Limited (2014) e KLR

11. In the circumstances, and upon consideration of the relevant material facts and the law, I am persuaded to grant an order of stay of execution pending hearing and determination of the appeal, but upon the following conditions;a.That 50% of the decretal sum shall be paid out to the respondent through his Advocates within 40 days of this rulingb.The balance (50%) shall be secured by a Bank Guarantee taken out in favour of the respondent; from Diamond Trust Bank Limited within 45 days of this ruling.c.In default of (a) and (b) above, the stay of execution orders shall lapse automatically.There shall be no orders as to costs on this application.Orders accordingly.

DATED, DELIVERED AND SIGNED IN NAIROBI THIS 10TH DAY OF NOVEMBER, 2022J. N. MULWAJUDGE