[2021] KEHC 3532 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL APPEAL NO. E066 OF 2021

IRENE MBENGE MUSYA......................................APPELLANT/APPLICANT

VERSUS

FIDELIS MARY KATITHI..........................................................RESPONDENT

RULING

1. The application for consideration before this court is the Appellant’s Notice of Motion dated 31st May, 2021. The same is brought under Sections 1A, 1Band3Aand65,all of theCivil Procedure Act and Order 42and51,both of theCivil Procedure Rules and enabling provisions of the law. By the Application, the Appellant/Applicant seeks the following orders: -

1. Spent;

2. Spent;

3. THAT this Honourable Court be pleased to Order a stay of execution of the orders made the [sic] 13th April, 2021 pending the hearing and final determination of this Application of the Applicant’s Appeal;

4. Spent;

5. Spent;

6. THAT the costs of this Application be provided for.

2. The Motion is supported by the grounds presented on its body and theAffidavit ofIrene Mbenge Musya,the Appellant/Applicant herein swornon31st May, 2021. She has averred that on the13th April, 2021,a Ruling was made in a summary Judgment application against her inMombasa RMCC No.915 of 2020whereby she was ordered to pay the Respondent a decretal sum ofKshs.377,000/=together with costs and interest of the suit.

3. Ms.Irene Mbenge,depones that being aggrieved and dissatisfied with the said order issued on 13th April, 2021,she has filed a MemorandumandNotice of Appeal. She further contends that the Respondent has instructed Kilimanjaro Auctioneers to proclaim her goods of trade and she thus stands to suffer irreparable loss.

4. Further, the Appellant has stated that if execution proceeds, her intended appeal will be rendered nugatory and she will suffer irreparable loss and damage.

5. The Application was opposed vide a Replying Affidavit sworn on 7th June, 2021 by Fidelis Mary Katithi, the Respondent herein. She has averred that Order 42 Rule 6of theCivil Procedure Rules, 2010 requires that it be made in the first instance before the court where the appeal comes from and thus the application herein should be dismissed.

6. Also, that the decree herein being a money decree which is owing from 1st May, 2017, and that it will be in the best interest of the Respondent thatthe sums as owed be paid.

7. The Respondent’s contention is that the Applicant herein, as the provisions of Order 42 Rule 6 of the Civil Procedure Rules, 2010 require, hasneither provided the threshold of substantial loss nor provided security for the due performance of the decree and or order. The Respondent has stated that no particulars of substantial loss have been stated by the Applicant.

8. This court has been urged by the Respondent, that in the event it is inclined to exercise its discretion in favor of the Appellant, it be pleased to direct that the Stay be conditional and the Appellant be asked to deposit the decretal sum in a joint interest earning account in the names of both advocates for the parties with the costs incurred in the process so far, being auctioneer costs, court fees, additional court fees be payable to the Respondent.

9. Parties relied on their pleadings as filed and no party filed any written submissions.

Analysis and Determination

10. Having considered all the pleadings by the parties, I find that the issue that arises for determination is whether this court can issue Stay of Execution of the Ruling and Orders granted on 13th April, 2021 pending the hearing of the intended Appeal.

11. An application for stay of execution pending appeal is governed by the provisions ofOrder 42 Rule 6 of the Civil Procedure Rules, 2010 which specify the circumstances under which the court may order a for Stay of Execution of a Decree or Order pending an Appeal. It provides that an Applicant must demonstrate the following: -

a) Substantial loss may result to the applicant unless the

orderwas made;

b) The application was made without unreasonable delay; and

c) Such security as the court orders for the due performance of such decree or order as may ultimately binding on him has been given by the applicant.

12. It is the Applicant’s case that the decretal amount of Kshs.377,000/= was awarded to the Respondent and she stands to suffer substantial loss if the Respondent, who has already instructed Kilimanjaro Auctioneers to proclaim her goods of trade is allowed to execute. It will be noted that the Applicant did not give any other reason on the issue of execution, other than stating that the execution by the Respondent will occasion her substantial loss. In the case of Awale Transporters Ltd –vs- Kelvin Perminus Kimanzi [2020]eKLR, Justice Odunga held that:-

“…That the Respondent intends to proceed with execution is not reason enough to grant stay since being the successful litigant, he is lawfully entitled to enjoy the fruits of his judgment. Therefore, in proceeding with the execution process the Respondent is simply exercising a right which has been bestowed upon him by the law and such an exercise cannot be stayed unless good reasons are given by the Applicant...”

13. Similarly in this case, the Respondent is a successful litigant, hence entitled to enjoy the fruits of his Judgment. I find that the Applicant has not demonstrated or shown the substantial loss she is likely to suffer if Stay of Execution is denied. I therefore agree with the finding of Justice Odunga in the Awale Transporters Case that the Applicant/Appellant has not given any reason to warrant the impediment of the Respondent’s right to its Judgment.

14. On whether the Application herein has been brought without undue delay, it is an undisputed fact that the Ruling of the trial court was delivered on 13th April, 2021 and the Application herein filed on the 2nd June, 2021. I find that there has been a one (1) month and eighteen (18) days delay which has not been explained by the Applicant.

15. The other requirement for Stay of Execution is the willingness of the Applicant to offer security for the due performance of the Judgment and Decree. From the grounds on the application and Supporting Affidavit, I find the Applicant herein has not indicated any willingness to offer security nor comply with any conditions that may be set by the court with regard to the due performance of the decree and or Judgment.

16. In view of the findings on the requirements for stay of execution pending hearing and determination of an appeal, I find the Applicant herein has not complied with the set requirements under Order 42 Rule 6(2) of the Civil Procedure Rules to warrant grant of such Stay of Execution pending Appeal.

17. The upshot is that the Application dated 31st May, 2021 is unmerited and the same is hereby dismissed with costs to the Respondents.

It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 28TH DAY OF SEPTEMBER, 2021.

D. O. CHEPKWONY

JUDGE

In the presence of:

Mr. Mwangunya counsel for Respondent

No appearance for and by Appellant

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