[2022] KEHC 9974 (KLR)

John v Sindani (Miscellaneous Civil Application 150 of 2021) [2022] KEHC 9974 (KLR) (7 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9974 (KLR)

Republic of Kenya

In the High Court at Migori

Miscellaneous Civil Application 150 of 2021

RPV Wendoh, J

July 7, 2022

Between

Daniel Kimani John

Applicant

and

David Nyabuto Sindani

Respondent

Ruling

1. The application for consideration is the one dated 25/10/2021 filed on 27/10/2021. On 23/11/2021, this court directed that this shall be the lead file and the orders herein shall apply to E149 and E152 all of 2021. The applicant is seeking the following orders:-1. Spent.2. Spent.3. That this court be pleased to allow the applicant to appeal the judgement in Rongo PMCC No. 26 of 2020 on 24/8/2021 out of time.4. That this court be pleased to order a stay of execution of the judgement delivered on 24/8/2021 pending the hearing and determination of the intended appeal.5. Costs be provided for.

2. The grounds upon which the application is based are found in the body of application and the supporting affidavit of Hemstone Owino Ouma learned Counsel for the applicant. He deponed that parties recorded a consent on liability on 22/6/2021 and the issues remained pending were the quantum and costs; that the court delivered its judgement on 24/8/2021 in favour of the respondent; that on 9/9/2021 he requested for a copy of the judgement in order for the applicant to make an informed and decision the copy was supplied on 23/9/2021.

3It was further deponed that the applicant was aggrieved by the decision of the trial court and instructed the Counsel on 22/10/2020 to file an appeal; that the applicant is apprehensivethat if a stay order is not issued, execution shall proceed subjecting him to irreparable and/or substantial loss; that the appeal raises triable issues for determination and if stay is not granted, the appeal will be rendered nugatory. Further, it was stated that the applicant is apprehensive that the respondent will not be in a position to refund the monies paid to him in the event that the appeal succeeds.

4. The applicant stated that he has already requested for certified copies of the proceedings and decree for purposes of filing an appeal and he is willing to furnish security for satisfaction of the decree in form of an insurance bond or bank guarantee or as may be directed by the court.

5. The application was opposed. The respondent filed a replying affidavit sworn by David Nyabuto Sindani dated 18/11/2018. The respondent deponed that he had been advised by his advocate on record that an order of stay pending execution can only be granted under specific conditions premised in the law; that applicant has not demonstrated that substantial loss will be suffered if stay is not granted; that the allegation that the respondent will not be able to refund the decretal sum has not been proven by the applicant and this is a question of fact which depends on each particular case; that even if the respondent is a man of lesser means, that would not necessarily justify a stay of execution.

6. It was further deponed that the application is a ploy to delay the respondent from enjoying the fruits of his judgment; that the applicant is an insurance company with financial wherewithal and should not be granted stay simply because it can furnish security. The respondent stated that if the court is inclined to grant the stay, it should direct that half of the decretal amount be paid to the respondents and the other half be deposited in an interest earning account in the joint names of the advocates of the parties within 30 days from the date of issuance of this order.

7. The court directed that the application be canvassed by way of written submissions. When this matter came up for directions on 26/4/2022, the applicant was given 7 days to file and serve submissions. This was not complied with. It is only the respondent who filed submissions which I have considered.

8. The application is one of stay pending appeal and leave to appeal out of time.

9. Order 42 Rule (6) (1) and (2) of the Civil Procedure Rules makes provision for stay pending appeal as follows:-(1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.(2)No order for stay of execution shall be made under subrule (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 orders for the due performance of such decree or order as may ultimate be binding on him has been given by the applicant.”

10. The four (4) salient ingredients that the applicant should establish for orders of stay of execution to issue are: -a)He shall suffer substantial loss if stay is not granted;b)That the application has been filed without unreasonable delay;c)The applicant is willing to furnish security for the due performance of the decree;d)The applicant has an arguable appeal.

11. On the issue of substantial loss, it is the applicant’s case that the respondent cannot repay back the money in the event the appeal succeeds. In rebuttal, the respondent stated that the applicant has not sufficiently demonstrated that he is not a man of means. In case of Silverstein v Chesoni (2002) 1 KLR 867 cited in Superior Homes (Kenya) Limited vs Musango Kithome (2018) eKLR the Court of Appeal held as follows:-“…issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory”

12. The assurance that the applicant has he will not suffer substantial loss is the ability of the respondent to refund the decretal sum if the appeal succeeds. In Superior (Homes) Kenya Limited vs Musango Kithome (supra), the court held:-“…The law, however appreciates that it may not be possible for the applicant to know the respondent’s financial means. The law is therefore that all an applicant can reasonably be expected to do, is to swear, upon reasonable grounds, that the Respondent will not be in a position to refund the decretal sum if it is paid over to him and the pending appeal was to succeed but is not expected to go into the bank accounts, if any, operated by the Respondent to see if there is any money there. In those circumstances, the legal burden still remains on the applicant, but the evidential burden would then have shifted to the Respondent to show that he would be in a position to refund the decretal sum.”

13. A similar finding was made in Kenya Posts & Telecommunications Corporation v Paul Gachanga Ndarua (2001) eKLR as follows:-“…Of course, ordinarily the burden was on the Corporation to show that were its appeal to succeed, the success would be rendered nugatory because the respondent would be unable to restore the decretal sum if that sum was immediately paid out to respondent immediately. But in a case such as this where it is alleged that the respondent has no known assets, the evidential burden must shift to him to show that he has assets from which he can refund the decretal sum. That must be so because the property a man has is a matter so peculiarly within his knowledge that an applicant such as the Corporation may not reasonably be expected to know them. He did not do so. An undertaking to give security by way of a bank or insurance bond is, in the circumstances of this matter, not sufficient.”

14. Since the applicant made the allegation that the respondent may not be able to repay the sums if paid to him being a man, it was incumbent for the respondent to rebut this presumption and provide the necessary documents to show his ability to repay the decretal sum. This was the observation of the court in the case of Superior (Homes) Kenya Limited (supra). The evidentiary burden lies with the respondent. In the absence of proof from the respondent that he is able to pay the decretal amount, the applicant is bound to suffer substantial loss and the appeal will be rendered nugatory.

15. The power to grant an order of stay of execution pending appeal is discretionary needs to balance the interests of the applicant with those of the respondent. In the absence of evidence on the source of means by the respondent, I decline to order for a release of half of the decretal amount to the respondent. However, since the issue of liability is settled and the Respondent is entitled to have award anyway, I think that it is only fair that the court release some of the sum to the Respondent, I hereby direct that the sum of Kshs. 300,000/= deposited in court be released to the Respondent and the same will be deemed to be sufficient security.

16. On whether there was unreasonable delay in bringing this application, Section 79G of the Civil Procedure Act provides that appeals from subordinate courts should be filed within thirty (30) days from the date of judgement. The judgement herein was delivered on 24/8/2021, the appeal ought to have been lodged on or about 24/9/2021. The instant application was filed on 25/10/2021. This is a period of about one month after the lapse of the statutory period of 30 days. The reason given for the delay was that the judgement was supplied to Counsel on 24/9/2021 and he received instructions to appeal against the judgement on 22/10/2020 which I believe is an erroneous date it may be 22/10/2021. It is common knowledge that at times instructing clients especially in the insurance industry take time to issue instructions. In my view, Counsel diligently moved with speed and filed this application within 2 days after receipt of instructions. I therefore find there was no inordinate delay.

17. On security for the due performance of the decree, On 27/10/2021, I directed that the applicant deposits in court the full decretal sum of Kshs. 300,000/= as a stay condition for stay and security for due performance within 14 days. On 26/4/2022 it was confirmed that this order was confirmed with. The applicant averred that he was willing to abide by anycourt orders in regard to security for due performance of the decree. I find that the applicant has fulfilled this condition and provided security for the due performance of the decree.

18. Whether the applicant has an arguable appeal: I have considered the memorandum of appeal (HOO-1). The applicant is disputing the damages awarded to the respondent as manifestly excessive. This is arguable. Since the applicant has already provided security for the due performance of the decree, then the respondent will not suffer any prejudice.

19. In the end, I make the following orders: -1. There shall be a stay of execution of the decree/judgement delivered on 24/8/2021 in Rongo Principal Magistrate’s Court Civil Case No. 26 of 2020 Daniel Kimani John vs David Nyabuto Sindani pending the hearing and determination of this appeal;2. That the sum of Kshs. 300,000/= deposited in court be released to the Respondent and the same to act as part of the security for due performance on the decree.3. Leave is granted to the applicant to file appeal out of time. The applicant to file and serve the draft Memorandum of Appeal within 7 days hereof after payment of the requisite court fees;4. The applicant to file and serve the record of appeal within 45 days hereof;5. The orders herein shall apply to Misc. Civil Application 152 of 2021 and Misc. Civil Application No. 149 of 2021. 6.Costs of this application do abide the outcome of the appeal;7. Mention of all the files in this series before the Deputy Registrar.

DATED, DELIVERED AND SIGNED AT MIGORI THIS 7TH DAY OF JULY, 2022R. WENDOHJUDGERuling delivered in the presence of:-Mr. Bosire holding brief Mr. Owino for the ApplicantNo appearance for the RespondentNyauke Court Assistant