[2023] KEHC 25695 (KLR)

Kangoro & another v Nyamu (Civil Appeal 8 of 2020) [2023] KEHC 25695 (KLR) (21 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25695 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Civil Appeal 8 of 2020

RM Mwongo, J

November 21, 2023

Between

Mercy Wacuka Kangoro

1st Appellant

Francis Mwangi Komu

2nd Appellant

and

Michael Muriithi Nyamu

Respondent

Ruling

1. The application before me seeks an order for stay of execution of the judgement delivered on 16th January 2020 in the lower court pending hearing and determination of the appeal in Kerugoya High Court Civil Appeal No.8 of 2020.

2. The application is premised on the following grounds and assertions contained in the applicant’s grounds and supporting affidavit:a.That the defendantsapplicants filed an appeal immediately after the judgement was delivered.b.That if the orders issued on 16th January, 2020 are executed, the whole appeal would be rendered nugatory. The case is pending for formal proof hearing since the DefendantsApplicants did not file their defence after filing their appearance.c.That after the judgement, they filed an appeal against the judgement at Kerugoya High Court vide this civil appeal No.8 of 2020, which is pending hearing.d.That they filed a Certificate of urgency in the Chief Magistrate Court dated 12th November, 2020 in Civil suit no.113 of 2016 which was decided against them; and that it was filed in time but in a court with no jurisdiction to determine the appeal matter and in which the ruling was entered ex-parte on 30/03/2022. e.That they are now seeking stay of execution of the orders of 16th January 2020 pending the hearing and determination of the appeal.

3. The respondent filed a replying affidavit asserting, inter alia:i.That Judgement was delivered on 16 January, 2020 by.E.O Wambo in Kerugoya CMCC NO.113 of 2016 and the respondent had not proceeded with the execution of the Judgement.ii.That the Appellants/Applicants have not demonstrated that they would suffer irreparable loss should the Judgement entered on 16th January, 2020 not be set aside.

4. Parties filed written submissions as directed by the court

Appellants/ applicants Submissions 5. The respondent claims that the grounds of application are false and calculated to win sympathy and further they ask for proof whilst the applicant attached the proof showing a copy of the appeal dated 20th January 2020.

6. The respondent’s replying affidavit dated 9th March, 2023 claims that he had not proceeded with execution of the judgment and requests the appellant to provide proof thereof. The applicant attached a copy of “notice of assessment of costs" served by the respondent dated 22nd October, 2020 in the magistrate’s suit No113 of 2016 which is for purposes of executing the judgment.

7. In the replying affidavit the respondent claims that the appellant’s assertions in the supporting affidavit are untrue and calculated to steal a match. The applicant attached a memo of appeal which shows that the matter was at the High Court and the appellant has a copy of ruling dated 31st March, 2022.

8. Under paragraph 10,11,12 and 13 of the replying affidavit dated 9th March 2023 the respondent claims that the appeal was delayed for three years which is untrue as it is clear that it took just four days to file the appeal which was on 20th January 2020.

Respondent’s Submissions 9. As to whether a stay of execution of judgement should be issued the principles guiding the grant of a stay of execution pending appeal are well settled under Order 42 rule 6(2) Civil Procedure Rules which provides:“No order for stay of execution shall be made under sub rule (l)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.”

10. In order to benefit from a stay of execution, the applicant must demonstrate a few things as pointed out by the Court of appeal in Halai & Another v Thornton &Turpin (1963) Ltd 119901 KLR 365 where the Court stated:“The High Court's discretion to order a stay of execution of its order or decree is fettered by three conditions. Firstly, the Applicant must establish a sufficient cause, secondly, the court must be satisfied that substantial loss would ensue from a refusal to grant stay and thirdly, the Applicant must furnish security. The application must of course be made without unreasonable delay. "

11. The respondent submits that there is no reason stated for the unreasonable delay; that it is not in dispute that judgement was delivered on 16th January, 2020; and that the application for stay was only filed on 12th November, 2020 which was approximately 10 months after judgment was read.

12. The applicants also failed disclose before court when they found out that the lower court did not have jurisdiction to grant stay. After filing the application on 12th November, 2020, it took the applicant a further 1 year and 8 months to move this Honourable Court to file the instant application

13. The applicants have totally failed to establish the substantial loss they are likely to suffer if stay is not granted. The Notice of Motion Application and/or the Supporting Affidavit do not demonstrate why the respondent should be kept from enjoying the fruits of the judgment.

Issues for Determination 14. The only issue for determination is whether an order for stay of execution of the judgment pending appeal should be allowed.

Analysis and Determination 15. The applicant seeks an order for stay of execution of the judgement delivered on 16th January 2020 pending hearing and determination of Kerugoya High Court Civil Appeal No.8 of 2020 filed on 20th January, 2020.

16. The law on stay of execution pending appeal is found in Order 42 rule 6(2) of the Civil Procedure Rules which provides as follows:“No order for stay of execution shall be made under sub rule (l)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.”

17. The principles are thus that: substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay

18. In Nicholas Stephen Okaka & another v Alfred Waga Wesonga [2022] eKLR it was held:“Further to the above, stay may only be granted for sufficient cause and that the Court in deciding whether or not to grant the stay and that in light of the overriding objective stipulated in sections 1A and 1B of the Civil Procedure Act, the Court is no longer limited to the foregoing provisions. The courts are now enjoined to give effect to the overriding objective in the exercise of its powers under the Civil Procedure Act or in the interpretation of any of its provisions.”Substantial loss

19. The applicants aver that if the orders issued on 16th January, 2020 are executed, the whole appeal would be rendered nugatory; whilst the respondent avers that the applicants failed to establish the substantial loss they are likely to suffer if stay is not granted. The Notice of Motion Application and/or the Supporting Affidavit do not demonstrate why the respondent should be kept from enjoying his fruits of justice. Further, the respondent avers that he has not proceeded with execution since the Judgement was delivered on 16 January, 2020.

20. The court, in RWW v EKW [2019] eKLR, considered the purpose of a stay of execution order pending appeal, in the following words:“The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.”Security of decretal sum

21. Under Order 42 rule 6(2)(b) it is one of the conditions for stay that the Applicant is required to furnish security for the due performance of the judgment debt should the appeal fail.

22. The purpose of security was clearly enunciated in Arun C. Sharma vs. Ashana Raikundalia t/a Rairundalia & Co. Advocates & 2 others [2014] eKLR, where the court stated:“The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. It is not to punish the judgment debtor…. Civil process is quite different because in civil process the judgment is like a debt hence the applicants become and are judgment debtors in relation to the respondent. That is why any security given under Order 42 rule 6 of the Civil Procedure Rules acts as security for due performance of such decree or order as may ultimately be binding on the applicants. I presume the security must be one which can serve that purpose.”

23. The applicant has not furnished or proposed any reasonable security.

24. In my view therefore the applicant has not fulfilled the conditions for grant of stay. Further, they have delayed for over two years in prosecuting the appeal. They have not demonstrated the loss they will incur if stay of execution is not granted.

25. Accordingly, there is no basis for granting their application, which is hereby dismissed.

26. Orders accordingly.

DATED AT KERUGOYA THIS 21ST DAY OF NOVEMBER, 2023. R. MWONGOJUDGEDelivered in the presence of:1. Asiimwe holding brief for Magee for the Respondent2. Mercy Wachuka Kangoro - Not Present(2nd Respondents is deceased).3. Francis Komu 2nd Applicant in person4. Murage, Court Assistant