[2017] KEHC 4003 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

CIVIL CASE NO. 3 OF 2014

JOSEPH KAMIRA WANJAU......................PLAINTIFF/RESPONDENT

VERSUS

REV. LLOYD K. KABAIYA PRESBYTERIAN

CHURCH OF EAST AFRICA ................1ST DEFENDANT/APPLICANT

NAKURU WEST PRESBYTERIAN......2ND DEFENDANT/APPLICANT

THE PRESBYTERIAN FOUNDATION OF THE

PRESBYTERIAN CHURCH OF

EAST AFRICA........................................3RD DEFENDANT/APPLICANT

RULING

1. By an application dated 30th November 2016 the Defendants sought orders of stay of execution of the courts judgment delivered on the 29th September 2016 pending hearing and determination of an appeal to the Court of Appeal. It is premised on the provisions of Order 42 Rule 6(1) & (2) of the Civil Procedure Rules, and Section 3A of the Act.

2. The applicants aver that the appeal may be rendered nugatory should an order of stay be denied and have offered security for the due performance of the decree in terms of a bank guarantee for the whole decretal sum. The Notice of Appeal was filed on the 30th September 2016 and copies of typed and certified proceedings requested for on the 29th September 2016.

The application was brought two months after the date of the judgment.

3. In opposing the application the Respondent filed a Replying affidavit on the 1st March 2017.

It is deposed that there is no demonstration that a denial of the orders of stay would cause the applicant any substantial loss nor was the application brought within reasonable time. It is further avered that the decree being a money decree does not attract an order of stay and that the Respondent is not a man of stroll and would be able to repay the said sum should the appeal be successful. Further, it is submitted that under the Court of Appeal Rules, there is no valid appeal pending and that being so, the orders sought ought not be granted.

4. I have perused and considered parties written submissions and oral arguments in highlighting the submissions.

An order for stay of execution is founded on the provisions of Order 42 Rule 6 of the Civil Procedure Rules and the discretion of the court. That discretion to be exercised upon three conditions that:

a) The Applicant must establish a sufficient cause

b) The-court must be satisfied that substantial loss would be occasioned from a refusal to grant the stay and

(c) The Applicant must furnish security for the due performance of the decree, and the application must be brought without delay.

5. Though the Applicants have submitted that they would suffer substantial loss if the order is not granted, no demonstration of such substantial loss has been made.

It is upon the applicant to show that the respondent would be unable to repay the money, a sum of Kshs.5,506,6000/= should the appeal be successful. If the respondents inability was alleged, the burden of proof that the respondent would not be able to repay would then have shifted to him to disapprove the allegation. This is not the case in this application.

6. In Josephine Seprahine Wadegu -vs- KPLC Ltd (2013) e KLR the court held that:

“where a decree for payment of money was issued, the inability of the other side to refund the decretal sum was not the only thing that would render the appeal nugatory---other factors had to be considered within the circumstances of each particular case...”

See also Florence Hare Mkaha -vs- Pwani Tawakal Mini Coach & Another (2014) e KLR.

7. By a court order dated the 30th November 2016, a sum of Kshs.2,500,000/= part of the decretal sum was ordered deposited in court pending hearing and determination of this application. That was done. It was a condition precedent to the hearing of the present application.

8. The applicants have not doubted the respondents ability to repay the decretal sum should the appeal be successful. They too have not told the court that they have difficulty in paying the decretal sum to the respondent. This is shown by their deposit of 50% to court.

See Caneland Malkit Singh Pandhab & Another -vs- Delphis Bank ltd – Civil Appeal No. NAI 344 of 1999.

9. I have also considered the Court of Appeal decision Nairobi Civil Appeal No. 74 of 2015 HFCK -VS- Sharok Kher Mohammed Hirji & Watts Enterprises Ltd. The general thread in the above decisions among others is that unless the applicant has demonstratably shown that the decree holder is a “man of straw” and is incapable of refunding the decretal sum should the money appeal be successful, an order of stay will not ordinarily be granted. See also Rose Mbithe Ndetei -vs- Mathew Kyalo Mboby Civil Appeal No. 86 of 2008. The result is that I am satisfied that no substantial loss would be occasioned to the applicants by a denial of the order of stay.

10. On the issue as to whether there is a valid appeal pending at the Court of Appeal pursuant to Court of Appeal rule 82(2), I leave that to the respondent to pursue in the right forum, the Court of Appeal.

11. For those reasons, the Applicant's application dated 30th November 2016 is devoid of merit. It is dismissed with costs.

12. The interim orders of stay of execution dated the 30th November 2016 are discharged and vacated. The whole decretal sum shall be paid out to the Respondent within 45 days of this ruling. It is directed that the amount of Kshs.2,500,000/= deposited in court be released to the Respondent being as part of the decretal sum.

13. The costs of this application are awarded to the respondent.

Dated, Signed and Delivered this 13th Day of July 2017

J.N. MULWA

JUDGE