[2023] KEHC 25264 (KLR)

Kanyangi v Ndire & another (Suing as the legal representative of the Estate of Sanon Ogola Ndire - Deceased) (Civil Appeal E033 of 2023) [2023] KEHC 25264 (KLR) (15 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25264 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Civil Appeal E033 of 2023

KW Kiarie, J

November 15, 2023

Between

Erastus Oyoo Kanyangi

Appellant

and

Elija Ndire Ndire

1st Respondent

Everline Atieno Okech

2nd Respondent

Suing as the legal representative of the Estate of Sanon Ogola Ndire - Deceased

Ruling

1. The Appellant/Applicant moved the Court by way of a Notice of motion dated the 29th day of May 2023. It was brought under sections 1A, 1B, 3 & 3A of the Civil Procedure Act, order 22 rule 22, and order 51 rule 1 of the Civil Procedure Rules. The Applicant is seeking the following orders:a.That this application be certified urgent, heard on a priority basis and service be dispensed with in the first instance. [Spent]b.That pending the hearing and determination of this suit, this honorable Court be pleased to order a stay of execution of the judgment delivered on the 19th day of May 2023. c.That this application be heard inter-parties on such date and times as this honorable Court may direct.d.That the costs of this application be provided for.

2. The application was premised on the following grounds:a.That the respondents have obtained judgment on 19/5/2013. b.That there is no stay of Execution and unless the orders sought herein are granted, the Plaintiff/Respondent will proceed with execution to recover the decretal sum.c.That the decretal sum is for a substantial sum which if paid to the Respondents, the Defendant/Applicant will not be able to recover the same from the Plaintiff/Respondents whose source of income or wealth is unknown to the Defendant/Applicant.d.That this application will not occasion any prejudice to the Plaintiff/Respondents if any.e.That this application has been done without any unreasonable delay and therefore it is in the interest of justice that it be allowed.f.That the Plaintiff/Respondent will not suffer any prejudice should this honorable Court grant the prayers as sought.

3. The Respondent opposed the application on the following grounds:a.That the Applicant’s application is made in bad faith and is a mere afterthought, an abuse, and misuse of the judicial process only aimed at delaying the case and also meant to deny the respondent the fruits of the judgment.b.That an appeal does not operate as a stay of execution or proceedings of decree.

4. It is trite law that an appeal does not operate as a stay for execution. Order 42 Rule 6 of the Civil Procedure Rules states as follows:(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.

5. In the case ofRWW v EKW [2019] eKLR, the Court while addressing its mind to the purpose of a stay of execution order pending appeal, stated: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.

6. The Applicant has not made any proposal in respect of the decretal sum. In the interest of justice and to safeguard the interests of both parties, the Applicant is ordered to deposit the decretal amount in an interest-earning Bank account in the names of both Counsel on record for the parties within 30 days. Failure to comply, then the Respondent will be at liberty to commence execution.

DELIVERED AND SIGNED AT HOMA BAY THIS 15TH DAY OF NOVEMBER 2023KIARIE WAWERU KIARIEJUDGE.