[2023] KEHC 25413 (KLR)

Impact Finance Trust CDF Bumula & another v Kokonya & another & another (Civil Appeal 71 of 2023) [2023] KEHC 25413 (KLR) (17 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25413 (KLR)

Republic of Kenya

In the High Court at Bungoma

Civil Appeal 71 of 2023

DK Kemei, J

November 17, 2023

Between

Impact Finance Trust CDF Bumula

1st Applicant

Benard Analo Makatiani t/a Benweil Auctioneers

2nd Applicant

and

Judith Mukhwana Kokonya & another

1st Respondent

Benson Simiyu

2nd Respondent

Ruling

1. The application under consideration is the one dated 3rd day of July, 2023 filed by the appellant/applicant seeking the following reliefs namely:a.Spent.b.Spent.c.That there be temporary stay of execution of the order and ruling in Bungoma CMCCC No. 456 of 2016 made on June 14, 2023 pending the hearing and determination of the appeal herein.d.That costs of the application be provided for.

2. The application is premised on grounds inter alia; that the appellant/applicant has since filed an appeal in this court that is pending determination and hence the need to protect the subject matter of the appeal; that the orders granted by the lower court leaves the appellant/applicants exposed to execution by the respondent whereof the appeal shall be rendered nugatory; that the appellant/applicant has a meritorious appeal with high chances of success; that the applicants application was dismissed by the trial court and hence this appeal; that the applicants will suffer substantial loss if the orders are not granted; that the applicants are ready to abide by any conditions to be imposed by the court.

3. The respondents opposed the application vide a Replying Affidavit sworn by Benson Simiyu the 2nd respondent on his own behalf and that of the 1st respondent sworn on July 20, 2023 wherein he averred inter alia; that the application is fatally incompetent, destitute of any merit and is otherwise an abuse of the due process of the honourable court; that this suit was instituted way back in the year 2016 and judgment in the matter was delivered by the honourable court on the January 18, 2023; that from the application, the appellants were aware from the 15th of December 2022 that the defence case had been closed; that despite being aware of the development, the appellants did not take any action without unreasonable delay to stop the writing of the judgement and request for the defence case to be re-opened; that however since the judgment was delivered on the January 18, 2023, the appellants never took any action to request for the setting aside of the judgement within a reasonable time only to wait until March 23, 2023 to file the application which was dismissed through a ruling delivered on the June 14, 2023; that it is clear that the applicants were indolent in moving the court and that the application was made with inordinate delay; that the applicants have not demonstrated how they will suffer substantial loss, as in any event he is a farmer who makes a living through farming and as such , in the event of success of the appeal, the respondents are able to refund what would have been paid to the respondents; that it has been a long walk to justice on the part of the respondents who lost one of their source of income through what he stated was an unjust, illegal, fraudulent and unfair act of the appellants way back in the year 2016 and having obtained the judgement in their favour, it is only in the interest of justice that the decree holder/respondents get to have a chance to enjoy the fruits of the same; that a perusal of the memorandum of appeal shows that the appeal is not meritorious, the honourable court having given a ruling based on a judicious exercise of its discretion as required by the law; that the applicants have not offered any security for the due performance of the decree and costs that were assessed in the lower court matter plus interest as required by order 42 rule 6 (2) of the Civil Procedure Rules; that the application be dismissed with costs as the applicants have not met the required threshold to warrant the application being allowed;

4. The application was canvassed by way of Written Submissions. The applicants filed their submissions dated August 25, 2023 while the respondents relied on their replying affidavit sworn on 20th day of July, 2023.

5. I have given due consideration to the rival affidavits and submissions. I find that the issue of for determination is whether the application meets the threshold to warrant grant of an order of stay of execution pending determination of the Appellants’ appeal.

6. It is trite that an application seeking stay of execution must meet the clear provisions of order 42 rule 6(2) of the Civil Procedure Rules which provides in summary as follows:‘’No order for stay of execution shall be made under sub rule (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 may order for the due performance of such decree or order as it may ultimately be binding on him has been given by the applicant.’’

7. As to whether the application has been filed without undue delay, it is noted that the impugned ruling was delivered on June 14, 2023 while the Memorandum of Appeal was filed on July 3, 2023. It is thus clear that there was no inordinate delay at all on the part of the appellant/applicant. That condition has been met.

8. As regards the issue of whether the applicant will suffer substantial loss, the applicant has beseeched this court for intervention since according to them, the appeal will be rendered nugatory if orders of stay are not granted at this stage as the respondent has already taken out warrants and is ready to execute. It is not in doubt that substantial loss does not represent any particular amount or size whether monetary or otherwise. It is sufficient that the applicant can show that the execution is likely to put into motion other state of affairs which will substantially affect the appellant as the eventual successful party in the appeal. See James Wangalwa & another v Agnes Naliaka Cheseto [2020] eKLR.The respondents have averred that they are persons of means and that they do farming and will be in a position to refund the decretal sums in the event of success of appeal. However, the respondents did not go further by presenting evidence to the effect that indeed they are not persons of straw such as by availing bank statements etc. This thus bolsters the appellants’ concerns that they are likely to have a paper judgement in the event of success of appeal as the respondents will not be in a position to refund the monies already paid to them. I find that the appellants have satisfied this condition.

9. As regards the issue of security, the appellants have averred that they are ready and willing to provide security for the due performance of the decree and that they are ready to abide by any condition to be imposed by the court. Indeed, the respondents are the decree holders and already on the seat of judgement and that they ought to enjoy the fruits of that judgement. If the appellants are now seeking to stand in their way, then they must see to it that the respondents’ concerns are taken care of. On the other hand, the appellants are also entitled to ventilate their appeal otherwise the same might be rendered nugatory. In order to balance their rival concerns, I find that an order that the appellants deposit the entire decretal sums into a joint interest earning account in the joint names of the advocates for the parties pending determination of the appeal will be appropriate in the circumstances.

10. In the result, I find merit in the appellants application dated June 30, 2023. The same is allowed in the following terms:

a.An order of stay of execution of the decree and all consequential orders in Bungoma CMCC No 456 of 2016 is hereby granted upon the appellants depositing the entire decretal amount plus assessed costs as disclosed on the warrants of attachment into a joint interest earning account in the names of both advocates within fourteen (14) days from the date of this ruling failing which the stay shall lapse.b.The costs of the application shall abide in the appeal.

DATED AND DELIVERED AT BUNGOMA THIS 17TH DAY OF OF NOVEMBER 2023D.KEMEIJUDGEIn the presence ofOnyando For Wamalwa Simiyu For Appellants/ApplicantsNo appearance Milimo for RespondentsKizito Court Assistant.