[2022] KEHC 9842 (KLR)

Kariuki v Karege (Civil Appeal E283 of 2022) [2022] KEHC 9842 (KLR) (Civ) (14 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9842 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E283 of 2022

JN Mulwa, J

July 14, 2022

Between

Joseph Maina Kariuki

Applicant

and

Kwame Kihoro Karege

Respondent

Ruling

1. By an application dated 6/5/2022, the applicant Joseph Maina Kariuki moved the court for orders of stay of execution of default judgment entered on the 20/9/2021 in Milimani CmelcNo. 41 of 2020 between himself and the Respondent herein, Kwameh Kihoro Karege, and decree drawn and issued on the 13/10/2021 in the sum of Kshs. 3,452, 284. 79.

2. He further seeks a stay of the ruling delivered on 4/5/2022 by the trial court. On the 10/5/2022, this court (Meoli J.) granted temporary stay orders which have been extended up to the delivery of the ruling upon hearing of the application interpartes.

3. The Applicant relies on grounds stated at the face of the application and his Supporting Affidavit sworn on the 6/5/2022.

4. It is his averment that the trial court failed to allow him to file a defence and counterclaim by a ruling dated 4/5/2022, stating that his failure to file the defence was due to his isolation when he was affected by the Covid-19 and was not able to access the court, and only did so after the isolation when he moved the court for orders to set aside the default Judgment, and that as the trial court failed to allow the application, he then filed this appeal by a Memorandum of Appeal dated 6/5/2022 and filed on even date.

5. In opposition to the application, the Respondent swore a very detailed affidavit on the 30/5/2022. It is his disposition that the trial court was in order by refusal to set aside the interlocutory applicant Judgment as the Applicant was properly served with summons to enter appearance after he had made part payment of the debt initially of Kshs. 4,350,000/= leaving a balance of Kshs. 2,118,9000/=which he had promised to pay but failed to pay, and which debt he admitted as owing by a letter dated 12/11/2021, hence stated that the purported defence and counterclaim cannot stand but a mere sham, meant to delay the course of justice. He has therefore urged the court to deny the Applicant the orders he seeks by the application.

6. At the time of writing this ruling, a month after the court directed the parties to file their submissions, only the Respondent filed his submissions, dated 16/5/2022.

7. By the submissions, the Respondent submits that the applicant has failed to satisfy the court of conditions for stay of execution pending appeal stated under Order 42 Rule (2) of the civil Procedure Rules(Cpr). He cited several cases; Prime Bank Ltd vs Paul Otieno Nyamodi [2014] eKLR, Gulf Fabricators vs County Government of Siaya [2020] e KLR and Kenya Shell Ltd vs Benjamin Karuga Kibiru[1982-1988] 1 KR and J.N. m vs P.M [2018] e KLR for the proposition that the applicant failed to demonstrate what substantial loss he would suffer if stay orders are denied by the court.

8. I have carefully considered the averments by both parties in their affidavits in support and opposition to the application and the Respondent's submissions.

9. Conditions for stay of execution are provided under Order 42 Rule 6(2) that the applicant must satisfy the court that:(2)No order of stay of exemption 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 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 purpose for stay of execution pending appeal is to preserve the subject matter in dispute so that the Appellants rights of appeal are safeguarded should the appeal be successful and is not rendered nugatory- RWW vs EKW [2019] e KLR.

11. In the case of Kenya Shell Ltd vs Benjamin Kibiru (Supra), the court of Appeal while dealing with the issue of an appeal being rendered nugatory held that;i.The court must consider whether the proposed appeal would be rendered nugatory unless payment of the decretal sum was stayed.ii.That there was no evidence on record to justify a finding that Respondents were not likely to repay the decretal sum is the appeal was successful.iii.It is not normal in money decrees for the appeal to be rendered nugatory if payment is made.

13. An order of stay is therefore not automatic. Conditions stated under order 42 Rule 6 ought to be satisfied - Halal & another vs Thornton & Timpin[1963] e KLR, [1990] e KLR.

13. As stated above, the decree thereof is a money decree. The Applicant has not stated what damage he would suffer if he pays the said sum to the Respondent, who in turn has averred that he is able to repay back should the appeal succeed. The cornerstone of an order of stay of execution pending appeal is that the applicant must show and demonstrate substantial loss - see the Kenya Shell Ltdcase (Supra).

14. That condition having not been satisfied by the applicant, the court is unable to grant the prayer No. 2 of the application.

15. Consequently, court orders of interim stay of execution dated 10/5/2022 are hereby vacated. The application dated 6/5/2022 is dismissed with costs to the Respondent.Orders accordingly.

DATED SIGNED AND DELIVERED THIS 14TH DAY OF JULY 2022. J.N. MULWAJUDGE