[2010] KEHC 4048 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (MILIMANI COMMERCIAL COURTS)

Civil Case 144 of 2003

JOHN SILAS LENANA OLE PULEIY …….................……..PLAINTIFF

VERSUS

HOUSING FINANCE COMPANYOF KENYA LIMITED....DEFENDANT

RULING

On 16th October 2009, Khaminwa J entered judgment in favour of the plaintiff as against the defendant for the sum of KShs.5,938,494/60. The amount decreed was to be paid together with costs and interest. The defendant’s counterclaim was dismissed. The defendant was aggrieved by the said decision of the court and has duly filed notice of its intention to appeal against the said decision to the Court of Appeal. On 17th November 2009, the defendant moved this court by notice of motion made pursuant to the provisions of Order XLI Rule 4 of the Civil Procedure Rules seeking to stay execution of judgment and decree of this court pending the hearing and determination of the intended appeal. The grounds in support of motion are stated in the face of the application. The application is supported by annexed affidavit of Joseph Kania. The application is opposed. The plaintiff, John Silas Lenana Ole Puleiy, swore a lengthy replying affidavit in opposition to the application.

At the hearing of the application, I heard rival submissions made by Mr. Issa for the defendant and by Mr. Kigano for the plaintiff. I have carefully considered the said submissions. I have also read the pleadings filed by the parties in support of their respective opposing positions in this application. The issue for determination by this court is whether the defendant established sufficient reasons to enable this court stay execution of the decree of this court. The factors upon which this court will determine whether or not to grant the stay sought are set out under Order XLI Rule 4 (2) of the Civil Procedure Rules. The factors are that this court must be satisfied that the substantial loss will result to the applicant if the order for stay of execution is not granted. Secondly, the application must be made without unreasonable delay and finally the applicant must provide security as may be required for the due performance of the decree. In deciding whether or not to stay execution of a decree or order, the court has to put in mind the fact that in some instances, in denying stay, the court would have preempted the exercise by the applicant of its right of appeal. It may result in the appeal being rendered nugatory. The court also has to take cognizance of the fact that a successful litigant should not be unduly kept, and without sufficient cause, from enjoying the fruits of his judgment (see Butt vs. Rent Restriction Tribunal [1982] KLR 1and Machira t/a Machira & Company advocates vs. East African Standard [2002] 2KLR 63).

In the present application, it is the defendant’s contention that if stay of execution is not granted, it would be unable to recover the decretal sum in the event that its appeal is successful. The defendant argued that the plaintiff was a man of straw and would be unable to refund the not insubstantial sum of more than KShs.6,000,000/=. The defendant pleaded with this court to stay execution of the decree so as not to render the intended appeal nugatory. The plaintiff countered the defendant’s argument by asserting that he was a man of substantial means who would be in a position to refund the decretal sum in the event that the appeal to be filed by the defendant shall be successful. The defendant exhibited valuation reports of his landed properties with a view to establishing that he was indeed worth more than KShs.20,000,000/=. He was therefore a man of means. He also urged the court to consider his circumstances and the fact that he now has a judgment entered in his favour which he should enjoy its fruits. It is evident from the positions taken respectively by the plaintiff and the defendant that prima facie, the arguments that they have advanced have merit. However, this court was persuaded by the argument advanced on behalf of the defendant to the effect that there would be no guarantee that the plaintiff would refund the decretal sum in the event that the intended appeal shall be successful. This is because of the fact that this court has taken judicial notice that in many instances it is not possible to sell agricultural land situate in rural areas, and even if the same attracted buyers, it may not attracted the values that have been disclosed or indicated in the valuation report.

In the present application, the sum involved is not insubstantial by any standards, including that of a middle income family in Kenya. In light of this court’s observation that the plaintiff has not placed before the court sufficient material to enable the court reach a finding that he would be able to refund the decretal sum in the event that the appellant succeed in its appeal, I hold that the defendant has established, to the required standard, that it would suffer substantial loss should stay of execution not granted. In the circumstances of this case, this court has weighed the competing interest of the plaintiff in regard to its entitlement to the fruits of its judgment and the defendant’s undoubted legal right of appeal. This court has reached the conclusion that the dictates of justice demands that the order craved for by the defendant be granted. The plaintiff’s interest shall be secured by an appropriate order as regards security for the due performance of the decree.

In the premises therefore, the defendant’s application filed on 17th November 2009 is hereby allowed. The execution of the decree and judgment of this court is stayed pending the hearing and determination of the appeal. The defendant shall deposit in an interest earning account in a reputable bank, in the joint names of the counsel of the parties to this suit, the sum of KShs.6,500,000/= within fourteen (14) days of today’s date. In default of such deposit, the order granting stay of execution hereinabove shall stand automatically vacated. The costs of the application shall be in the cause.

DATED AT NAIROBI THIS 20TH DAY OF JANUARY 2010.

L. KIMARU

JUDGE