[2022] KEHC 1882 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. E583 OF 2021

JACQUELINE ONDARI...................................................................... APPELLANT

VERSUS

MICHAEL MAKOSALA..................................................................RESPONDENT

RULING

The application dated 15th September 2021 seeks the following orders;

1. Spent

2. Spent

3. That there be and hereby a stay of execution in CTC 626 of 2015 pending the hearing and determination of this appeal.

4. That the costs of this application be in the cause.

The application is supported by the applicant’s affidavit sworn on 14th September, 2021 and a supplementary affidavit sworn on 26th October, 2021. The respondent filed grounds of objection dated 4th October, 2021. The application was determined by way of written submissions.

Counsel for the applicant submitted that the applicant has difficulties in settling the decretal sum. The appeal has high chances of success. The applicant and the judgment creditor are in talking terms and are friends. The Tribunal did not take into consideration how the debt was incurred. The applicant is willing to settle the decretal sum by way of monthly instalments.

Counsel for the respondent submit that the applicant has to satisfy the following conditions: -

i. substantial loss that may result to the applicant.

ii. the application has been made without unreasonable delay.

iii. security as the court orders for the due performance of such decree or order as may ultimately be binding on him/her, has been given by the applicant.

Counsel for the respondent contend that the fee structures annexed to the supplementary affidavit do not prove that the applicant is paying fees for her children. The applicant has not established that she will suffer substantial loss if the decretal sum is paid. No affidavit of means has been provided showing the applicant’s income and expenditure status. It was further submitted that the appeal is not against the judgment of the Tribunal but against a ruling which declined to allow the applicant to settle the decretal sum by way of instalments. Further, the applicant has not indicated whether she is willing to provide security.

The applicant in her two affidavits does not dispute her liability to the respondent. She acknowledges that she is indebted to the respondent. Her main contention is that the respondent is her friend who lives in the United States and is not really pushing for payment of the decretal sum. She further avers that she has two children at the University.

The appeal is against the ruling of the Co-operative Tribunal delivered on 2nd September 2021 which dismissed the applicant’s request to liquidate the decretal sum by way of monthly installments of Kshs. 10,000 each until payment in full. The Judgment was entered way back on 11th April 2017. The application is seeking stay of execution of the Judgment of the Tribunal pending the hearing and determination of the appeal.

In the case of BUTT –V- RENT RESTRICTION TRIBUNAL (1982) KLR, 417 it was held: -

“1. The power of the court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.

2. The general principle in granting or refusing a stay is; if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should that appeal court reverse the judge’s discretion.

3. A judge should not refuse a stay if there are good grounds for granting it merely because in his opinion, a better remedy may become available to the applicant at the end of the proceedings.

4. The court in exercising its discretion whether to grant [or] refuse an application for stay will consider the special circumstances of the case and unique requirements. The special circumstances in this case were that there was a large amount of rent in dispute and the appellant had an undoubted right of appeal.

5. The court in exercising its powers under Order XLI rule 4(2)(b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security for costs as ordered will cause the order for stay of execution to lapse.”

The judgment was entered in 2017. It’s not clear what happened between 2017 and 2021. The appeal is against a ruling of the Tribunal and not the main judgment. All what the applicant is seeking is to settle the decretal sum by way of instalment.

In the case ofRWN –V- EKW (2019) eKLRthe Court stated as follows:

“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.

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.”

The Tribunal was of the view that the applicant has not shown any good faith in settling the debt. Had the applicant started settling the debt by installment, she would have fully settled it. The judgment in favour of the respondent is for KShs. 341,160 plus costs. That amount is attracting interest. Blanket orders staying execution without any security may ultimately not help the applicant. The more the delay the more interest the decretal sum attracts.

The court has to balance the applicant’s right to pursue her appeal against the respondent’s right to exercise the fruits of his judgment. The nature of the dispute is that the applicant will ultimately have to settle the debt since she is not seeking the setting aside of the judgment.

Given the rival positions and considering the applicant’s plea that all what she is seeking is an opportunity to settle the debt, I do find that the application dated 15th September 2021 is merited. The court cannot turn a blind eye on the applicant’s plea that she is having financial difficulties. However, the applicant cannot benefit from orders staying execution without providing security or paying part of the decretal sum. There is no issue that the respondent will be called upon to refund any amount paid to him since the debt is not disputed. The good relationship between the parties cannot replace the Tribunal’s judgment. The respondent is free to forfeit the judgment through his advocates but has not done so.

The upshot is that the application dated 15th September 2021 is granted on the following terms: -

1) The applicant to pay the respondent a sum of Kshs. Sixty thousand (Kshs.60,000/-) within thirty (30) days hereof.

2) The applicant to make a further payment of Kshs. Seventy thousand (Kshs.70,000) within Sixty (60) days hereof, that is, within thirty (30) days after the first instalment.

3) The applicant to file the record of appeal within ninety (90) days hereof.

4) In default of complying with orders (1) and (2) above, the orders staying execution shall automatically stand vacated and execution shall issue.

5) Costs of the application shall be in the cause.

DATED AND SIGNED AT NAIROBI THIS 1ST DAY OF MARCH, 2022

S.J. CHITEMBWE

JUDGE