[2018] KEHC 4487 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CIVIL APPEAL NO. 60 OF 2018

JOHNSON GUCHU KANGETHE.........................................1ST APPLICANT

JOSEPH KANGETHE GUCHU............................................2ND APPLICANT

VERSUS

FRANCIS MUCHIRA.................................................................RESPONDENT

RULING

1. The Application before the Court is a Notice of Motion dated 02/05/2018. In the main it seeks an order for stay of execution of the judgment and decree entered in Nakuru CMCC No. 631 of 2010. Ex parte judgment in the matter was entered into on 14/10/2010 against the Appellants. A decree was duly issued on 12/07/2011. It would appear that at least as at 21/12/2011, the Appellants knew about existence of the suit and judgment. They entered appearance through their advocate on that day. Earlier, on 09/12/2011, the Appellants had paid part of the decretal sum. They now claim that the amount was paid through coercion.

2. In any event, on 14/03/2018, the Appellants approached the Trial Court with an application seeking to set aside the ex parte judgment and prevent its execution. The grounds were mainly that the Appellants alleged that they had never been served with the Summons to Enter Appearance in the matter. The Learned Magistrate found the story incredulous, in part, basing his reasoning on the detailed Affidavit of Service filed and the fact that the Appellants had entered appearance more than six years earlier. The Learned Magistrate dismissed the Application and declined to set aside the judgment.

3. The Appellants have preferred an appeal against the Learned Magistrate’s ruling. In addition, they have filed the present Application. The Appellants are apprehensive that the Respondent will execute the judgment of the lower Court if a stay of execution pending the hearing and determination of the Appeal is not granted. The Appellant filed a Supporting Affidavit in support of his Application.

4. The Application is opposed. The Respondent filed Grounds of Opposition.

5. The parties filed written submissions in support of their respective positions.

6. The procedural posture of the Application is that this is an application for stay of the judgment of the lower Court. It is, therefore, governed, primarily, by the terms of Order 42 Rule 6 of the Civil Procedure Rules. The conditions to be met by an Applicant in order to be entitled to an order for stay are encapsuled in that Rule in the following terms:

6. (1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of 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 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; and

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

7. The law regarding the grant of stay of execution is well established in Kenya. Among the legion of authoritative cases establishing it, the judges of the Court of Appeal were both concise and emphatic in Rhoda Mukuma v John Abuoga:

It was laid down in M M Butt v The Rent Restriction Tribunal, Civil Application No Nai 6 of 1979, (following Wilson v Church (No 2) (1879) 12 Ch 454 at p 488) that in the case of a party appealing, exercising his undoubted right of appeal, the court ought to see that the appeal is not rendered nugatory. It should therefore preserve the status quo until the appeal is heard.

Granting a stay in the High Court is governed by Order XLI rule 4(2), the questions to be decided being – (a) whether substantial loss may result unless the stay is granted and the application is made without delay; and (b) the applicant has given security.

8. In Antonie Ndiaye v African Virtual University [2015] eKLR which has been cited by both parties, Gikonyo J. set out the guiding principles in the determining whether to grant a stay of execution or not in these terms:

The discretion must be exercised judicially, that is to say, judiciously and upon defined principles of law; not capriciously or whimsically. Therefore, stay of execution should only be granted where sufficient cause has been shown by the Applicant. And in determining whether sufficient cause has been shown, the Court should be guided by the three pre-requisites provided under Order 42 Rule 6 of the Civil Procedure Rules.

9. Hence our decisional law applying Order 42 Rule 6 of the Civil Procedure Rules has set out a four-part test which an Applicant for a stay of execution must satisfy in order to be successful. Such a party must demonstrate that:

a. The appeal he has filed is arguable;

b. He is likely to suffer substantial loss unless the order is made. Differently put, he must demonstrate that the appeal will be rendered nugatory if the stay is not granted;

c. The application was made without unreasonable delay; and

d. He has given or is willing to give such security as the court may order for the due performance of the decree which may ultimately be binding on him.

10. The Respondent claims that the Applicants have not demonstrated that they have an arguable appeal. Indeed, he positively argues that the chances of the appeal succeeding are dismal. I have perused the Memorandum of Appeal filed in this case. I am unable to say that the grounds of appeal enumerated are in-arguable. I should point out that to be entitled to a stay of execution, one is not required to persuade the Appellate court that the filed appeal has a high probability of success. All one is required to demonstrate is the arguability of the appeal: a demonstration that the Appellant has plausible and conceivably persuasive grounds of either facts or law to overturn or vary the original verdict. The Appellants here seek to persuade the Appellate Court that the Learned Magistrate erred in refusing to exercise his discretion to set aside the judgement. This is not eminently in-arguable.

11. On the question of substantial loss, the Applicants have alleged that the effect of execution would be the sale of parcel No. LR No. Kiambogo/Miroreni Block 1/2027 which is a family property on which the Appellants live. They say that the property has already been attached as part of the execution process. The Respondent has countered that the same property is claimed by a third party as part of the execution process anyway.

12. I have perused the Plaint filed in the Lower Court and the decree issued. The main prayer in the Plaint was for liquidated damages of Kshs. 3 Million. The decree issued is for that sum plus interests and costs. This was not a suit for conveyance of property. The property that has been identified is only for the due satisfaction of a valid, existing money decree which has remained unpaid. It is a red herring to claim that there will be substantial loss and the appeal will be rendered nugatory because the property will be sold. The property will not be sold if the Appellants paid the decretal amounts.

13. For money decrees such as this one, the Appellants could only prove substantial loss if they demonstrated that the Respondent would be unable to reimburse any amounts paid. Here, the Appellants have not as much as made an allegations that the Respondent is a man of straw who would be unable to repay the amounts. Indeed, the opposite appears to be true: the Appellants have demonstrated their impecuniousness in the present application and have made it clear that should they not prevail on appeal they will be unable to satisfy the decree.

14. The Appellants have urged the Court to accept the title to the parcel No. LR No. Kiambogo/Miroreni Block 1/2027 as security for the due performance of the decree that might ultimately be binding on them. I find no reason to go that route because the Appellants have not demonstrated to me that their appeal will be rendered nugatory. It is a money decree; and there is a valid Court order in place.

15. I should hasten to add that the age of this case has militated against the exercise of my discretion in favour of the Appellants. As the Learned Trial Magistrate pointed out, the Plaint was filed in 2010 – 8 years ago. The ex parte judgment was entered in October, 2011 – some 7 years ago. There is no question that the Appellants were at least aware of the suit and judgment as at 21/12/2011. There is really no good explanation that has been given why it took them more than seven years to challenge the entry of judgment. They may, eventually, persuade the Appellate Court that the entry of judgment was erroneous – but they would be undeserving of the equitable remedy of stay at this stage.

16. The result is that I find no merit in the present Application. The same shall be dismissed with costs.

17. Orders accordingly.

Dated and delivered at Nakuru this 8th day of August, 2018.

........................

JOEL NGUGI

JUDGE