[2022] KEHC 15255 (KLR)

Kago v Equity Bank (Kenya) Limited & another (Civil Appeal E342 of 2022) [2022] KEHC 15255 (KLR) (Civ) (11 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15255 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E342 of 2022

JK Sergon, J

November 11, 2022

Between

Mary Wamuhu Kago

Appellant

and

Equity Bank (Kenya) Limited

1st Respondent

East African Data Handlers Ltd

2nd Respondent

Ruling

1. The appellant/applicant herein has brought the notice of motion dated June 27, 2022 supported by the grounds set out on the body thereof and the facts stated in the affidavit of Mary Wamuhu Kago. The applicant sought for the following orders:i.Spent.ii.Spent.iii.Spent.iv.That pending the hearing and determination of this appeal, on order of injunction do issue restraining the 1st respondent by itself, its servants or agents or nominees particularly Antique Auctions Agencies from selling by public auction or any other manner, disposing, re-advertising, interfering or attempting to evict the appellant /applicant from the Title No Kabete/karura/2059 pending the hearing and determination of this application. That this order be enforced by the officer commanding Central Police station.v.That pending the hearing and determination of this appeal, there be stay of execution of the orders issued by the ruling of the Honorable E Wanjala (MS) (PM) delivered on April 28, 2022 virtually in Chief Magistrate Court at Nairobi MCCC/E2672/2021. vi.That costs of this application be in the cause,

2. In opposing this motion, the 1st and 2nd respondents filed a replying affidavit dated August 8, 2022.

3. When the motion came up for interparties hearing, the parties respective advocates chose to rely on the averments made in their respective averments.

4. I have considered the grounds laid out on the body of the motion, the facts deponed in the affidavits supporting and opposing the motion and the brief oral arguments.

5. In her affidavit filed in support of the motion dated June 27, 2022, The applicant stated that she is the registered owner of the said property title No Kabete /Karura/2059 that she bought through mortgage of Kshs 1,980,000/= from Equity Bank and that she fully repaid the said mortgage and thereafter guaranteed the 2nd respondent East African Data Handlers Limited .

6. She avers that given that she had guaranteed the aforementioned East African Data Handlers a loan of Kshs 25,000,000/=, of which she authoritatively confirmed that she was not aware and did not sign any guarantee and indemnity documents, the first respondent did not formally discharge the charge. As a result, she reported the matter to the Directorate of Criminal Investigations, who are currently investigating it with the Banking Fraud Investigation Unit Nairobi.

7. She further avers that on March 25, 2021, Antique Auctions Agencies notified her property was being sold. She then filed an application, which resulted in interim orders, but these were overturned by the respondents' preliminary objection, which claimed that the plaintiff's suit was res judicata. This objection was upheld and the 1st respondent was prompted to file this appeal.

8. In retort, the 1st respondent avers that their right to recover the security has materialized and they should be allowed to carry on with the process of recovery and that the applicant had filed previous suit seeking injunctive orders but the same was dismissed.

9. The principles guiding the grant of an application for stay of execution pending appeal are well settled. These principles are provided under order 42 rule 6(2) of the Civil Procedure Rules which provides as follows:1. 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 ultimately be binding on him has been given by the applicant.

10. The above conditions were similarly laid out in the case of G N Muema P/A (Sic) Mt View Maternity & Nursing Home v Miriam Maalim Bishar & another [2018] eKLR cited in the

11. Was the application filed without unreasonable delay? The application has been filed one month after the delivery of the ruling. It is noted that the appeal was filed on June 27, 2022 soon after the delivery of ruling thus signaling the applicant’s interest in pursuing the appeal. There is thus no inordinate delay on the part of the applicant.

12. On the issue of substantial loss, which is the cornerstone in an application for stay. The applicant in this matter avers that if the 1st respondent is permitted to dispose of the suit property, she will be permanently deprived of the right to redeem it, suffer irreparable loss and injury that cannot be made up for by a monetary settlement, and have her intended appeal dismissed.

13. The Court of Appeal in the case of Butt v Rent Restriction Tribunal [1979] eKLR when it held that in considering an application for a stay of execution, the courts ought to exercise their discretion in a manner that will not render the appeal in question nugatory, if successful.

14. I am also alive to the reality that unless the applicant is granted an opportunity to defend its case, it stands to be condemned unheard, thereby undermining the dictates of substantive justice and violating the applicant’s constitutional right to be heard.

15. From the foregoing, I am convinced that the applicant has reasonably shown the substantial loss it may suffer should the order for a stay of execution be denied.

16. In respect to the third and final condition, the applicant expressed its willingness to abide by the conditions to be set by this court.

17. Consequently, an order for stay of executions of the orders issued by the ruling of the Honorable E Wanjala (MS) (PM) delivered on April 28, 2022 pending appeal is granted on condition that the appellant deposits the sum of Kshs 2,000,000/= in an interest earning account in the joint names of the advocate or firms of advocates appearing in this appeal within 45 days. In default the stay application automatically lapses. Costs of the motion to abide the outcome of the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 11TH DAY OF NOVEMBER, 2022. J K SERGONJUDGEIn the presence of:......................for the appellant............for the 1st respondent............for the 2nd respondent