[2022] KEHC 58 (KLR)

Kanyaa v Ndeto (Civil Appeal E89 of 2021) [2022] KEHC 58 (KLR) (3 February 2022) (Ruling)

Neutral citation: [2022] KEHC 58 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal E89 of 2021

MW Muigai, J

February 3, 2022

Between

Raphael Misika Kanyaa

Appellant

and

Shedrack Mutua Ndeto

Respondent

Ruling

Notice of Motion Dated 6th July,2021 1. (Spent)

2. That this Court orders a stay of execution of the judgment/decree issued by this Honourable Court on 27th May, 2021 by Hon. Magistrate B. Bartoo, Senior Resident Magistrate pending the hearing and determination of this application.

3. That this Court be pleased to stay the execution of the judgment/decree obtained herein pending the hearing and determination of this Appellant’s /Applicants appeal filed at the High Court of Kenya at Machakos as Civil Appeal No. 89 of 2021.

4. That the costs of this application abide the outcome of the Appeal.

Supporting Affidavit 5. The application is supported by the Appellant/Applicant’s affidavit whose averments the court has considered.

6. It is submitted that that the judgment was entered against the Appellant on 27th May, 2021 in Machakos CMCC No. 62 of 2020 for a principal sum of Kshs.376,200/- plus costs and interest and being dissatisfied with the whole of the said judgment lodged an appeal.

7. That in the said judgement Kshs.320,000/- was awarded as general damages, kshs.56,2000 in special damages and 100% liability with costs and interest.

Replying Affidavit 8. In opposition to the application, the Respondent swore a Replying Affidavit on 26th July, 2021. He deposed that the application is made in bad faith and made to deny the Respondent fruits of his rightfully obtained judgment; that the Appellant has not demonstrated he will suffer substantial loss if stay is not granted; that the Appellant has not demonstrated to have an arguable appeal with overwhelming chances of success and if stay is refused, the appeal will be rendered nugatory.

9. It is stated that the Respondent is a man of substance working as a driver and also a businessman and earning over Kshs.60,000/- per month and can repay the decretal sum is appeal is allowed.

10. According to the deponent, the Appeal has no chances of success as the appeal is on quantum only.

11. He deposed that the Bank guarantee allegedly provided by the Respondent is a general one and to the directors and not for this specific suit hence it is not a security.

12. The Respondent has also averred that in the event court is inclined to grant stay, he should be given half of the decretal sum.

SubmissionsAppellants/applicant Submissions 13. It was submitted that the Appellant/Applicants that the appeal and raises serious issue to warrant this Court’s intervention on appeal as the injuries suffered were soft tissue injuries in nature and ought to attract a lower award.

14. In the court of appeal in Kenya Revenue Authority –vs- Sidney Keitany Changole & 3 others [2015] eKLR it was held that the Applicant need only prove or establish one arguable point nothing that an arguable appeal is not necessarily one that will succeed but one that is not frivolous”.

15. It is further submitted that the Respondent’s means are unknown and it is highly unlikely that the Respondent will be capable of refunding the decretal amount in the event that the Applicants appeal succeeds since the Respondent have not disclosed nor furnished the Court with any documentary evidence to prove her financial standing and that the Respondent did not dispute this and/or show that he has means of paying the decretal amount in the event judgment was delivered in favour of the Applicant.

16. On the issue of security it was submitted that the Applicant has Appellant/Applicant Insurer is ready and willing to provide a Bank Guarantee as a security.

Respondent Submissions; 17. According to the Respondent the award of the Court is not inordinately high and the appeal being a money claim the appeal cannot be rendered nugatory for one can sue for refund and that it is the duty of the Appellant/applicant to show that it will suffer substantial loss if stay is not granted.

18. The following authorities were cited; MKS HCCA. E36 of 2021 Indus Trading Ltd & AnorvsCharles Aricha, MKS HCCA 43/2020 – Godfrey Wainaina Kinyanjui & Anor – Vs- Joseph Mwikya Musau and MKS HCCA No. 62 of 2008 Mutua Kilonzo –vs- Kioko David; the Court dismissed application for stay of execution because substantial loss was not proved.

19. The Respondent further submitted that the Appellant/applicant has failed to satisfy the conditions for stay to warrant the court to exercise its discretion in his favour.

Determination; 20. The issue for determination in considering the pleadings and written submissions of parties’ through respective Counsel is whether or not to grant stay of execution pending appeal.

21. Order 42 Rule 6 (2) CPR 2010 provides;1. 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; 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.

22. The High court jurisdiction to grant stay of execution is fettered by 3 conditions as outlined above, namely; establishment of a sufficient cause, proof of substantial loss and furnishing of security. The application for stay of execution should be filed without delay.

23. In Machakos CMCC 62 of 2020, on 27th May,2021 the Court awarded the Plaintiff/Respondent herein Ksh 320,000/- general damages, special damages Ksh 56,200/- with interest and cost of the suit.

24. The Appellant sought to exercise its right of appeal subject to stay of execution to avoid the appeal being rendered nugatory. The award of damages is not colossal and it has not been established that the Respondent is a man of straw that in the event of successful appeal he will not be in a position to refund the decretal amount. The Respondent submitted that he is a businessman who earns Ksh 60,000/- a month and the Appellant did not tender evidence to controvert this position/assertion. The Applicant has the burden of proof that the Respondent will not be able to refund the decretal amount in satisfaction of the decree.

25. In Samvir Trustee Limited vs. Guardian Bank Limited Nairobi (Milimani)HCCC795 of 1997 as Cited in Victory Construction V BM (a Minor Suing Through Next Friend One PMM) [2019] eKLRthe Court observed:“For the applicant to obtain a stay of execution, it must satisfy the court that substantial loss would result if no stay is granted. It is not enough to merely put forward mere assertions of substantial loss, there must be empirical or documentary evidence to support such contention. It means the court will not consider assertions of substantial loss on the face value but the court in exercising its discretion would be guided by adequate and proper evidence of substantial loss…”

26. In Tabro Transporters Ltd vs Absalom Dova Lumbasi [2012] eKLR the Court posited:“In law, the fact that the process of execution is likely to be put in motion, by itself, is not a ground for granting stay of execution. The Applicant must show that substantial loss will occur if the execution is not stayed. But what does substantial loss entail?...The Applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal. This is what substantial loss would entail…”

27. Applying the above standards/criteria to establish substantial loss, the Appellant failed to provide evidence of the Respondent’s impecunity and/or the Appellant’s challenge in satisfying the decree while awaiting the outcome of the impending appeal.

28. On the issue of high chances of success of the impending appeal, the Court perused the memorandum of appeal filed on 16th June 2021 and the Appellant is challenging quantum only but not liability. The Appellant concedes that the Respondent is entitled to some form of compensation the issue is how much.

29. The Trial Court delivered on 27th May,2021and the Appellant filed the present application on 12th July 2021. Hon J D. Kemei granted interim/temporary stay of execution on 19th July 2021 pending hearing of the instant application interpartes.Therefore, there was no delay in lodging the appeal.

30. In MKS HCCA. E36 of 2021 indus trading ltd & anor vs charles aricha supra cited samvir trustee limited vs. Guardian Bank Limited Nairobi (milimani) HCCC 795 of 1997 thus in part;…… but the yardstick is for the Court to balance or weigh the scales of justice ensuring that an appeal is not rendered nugatory while at the same time ensuring that a successful party is not impeded from enjoyment of fruits of his judgment. It is a fundamental factor to bear in mind that a successful party is prima facie entitled to fruits of his judgment; hence the consequence of a judgment is that it has defined the rights of a party with definitive conclusion………

31. Taking into consideration the various circumstances, this Court finds that on the one hand the Appellant has a right of appeal but it should not be to the detriment of the Respondent. The Appellant filed the instant application without unreasonable delay. Although, substantial loss is not established, the right of appeal is sufficient cause for grant of stay of execution subject to furnishing of security. The Appellant proposed security being in form of bank guarantee, this Court finds that the terms of the Guarantee are not disclosed so as to be considered sufficient security. The decretal amount is not exorbitant, that if it is settled upfront, it shall to stall the operations of the Appellant’s Insurer.

Disposition 32. However, in light of the fact the appeal is focused on quantum, this Court in the circumstances grants security by the Appellant’s payment of ½ decretal amount to the Respondent within 60 days from delivery of the Ruling before pursuing hearing and determination of the appeal. In default, the appeal shall stand dismissed at expiry of 60 days from date of Ruling.

DELIVERED SIGNED & DATED IN OPEN COURT ON 3RDFEBRUARY 2022 (VIRTUAL CONFERENCE)M.W. MUIGAIJUDGEMACHAKOS HIGH COURT