[2022] KEHC 13630 (KLR)

Kariuki v Wanjiru (Suing as the legal representative of the Estate of Liam Mbugua) (Deceased)) (Civil Appeal E189 of 2021) [2022] KEHC 13630 (KLR) (6 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13630 (KLR)

Republic of Kenya

In the High Court at Kiambu

Civil Appeal E189 of 2021

MM Kasango, J

October 6, 2022

Between

Maina Ndegwa Kariuki

Appellant

and

Esther Wanjiku Wanjiru

Respondent

Suing as the legal representative of the Estate of Liam Mbugua) (Deceased)

(Being an application for stay of execution of the decree of the judgment of the Chief Magistrates Court at Gatundu (Hon. H. M. Ng’ang’a, PM) dated 29th September, 2021)

Ruling

1. The appellant, by Notice of Motion dated October 12, 2021, prays for stay of execution of the trial court’s decree pending the hearing and determination of this appeal.

2. The appellant deponed that the appeal has high chances of success; and that if the decretal sum is paid to the respondent, the respondent would not be in a position to refund the same for lack of means in the event the appeal does succeed.

3. The respondent opposed the application on the grounds that the appellant has not furnished security. The respondent seeks that the court does order the appellant to deposit the decretal sum into court.

Discussion And Determination 2. Order 42 Rule 6 of the Civil Procedure Rules requires the applicant seeking stay of execution, pending appeal, to meet the following standards:-“(2)“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; 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.”

3. On substantial loss, the appellant cast doubt on the respondent’s ability to refund the decretal sum in case the appeal does succeed. The Court of Appeal held in the case of National Industrial Credit Bank Ltd Vs. Aquinas Francis Wasike & Another (2006) eKLR that once the applicant casts doubt that the respondent can refund money if the appeal does succeed, the burden shifts to the respondent to prove he can. This is what the Court of Appeal stated in that case:-“This Court has said before and it would bear repeating that while the legal duty is on an applicant to prove the allegation that an appeal would be rendered nugatory because a respondent would be unable to pay back the decretal sum, it is unreasonable to expect such an applicant to know in detail the resources owned by a respondent or the lack of them. Once an applicant expresses a reasonable fear that the respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the respondent to show what resources he has since that is matter which is peculiarly within his knowledge ...”

4. The respondent did not shift that burden of proof. It follows that the appellants had proved they would suffer substantial loss if stay of execution was not granted.

5. The appellant provided a bank guarantee as security for the due performance of the decree. I am unable to accept that Bank Guarantee as security because the guarantee is granted to the appellant’s insurer Directline Insurance Company Limited not the appellant. I also note the validity of the guarantee was valid for 12 months as at November, 2020. The twelve months have expired and I have no evidence of extension of the guarantee. The respondent requires security be provided by the appellant.

Disposition 6. In respect to the Notice of Motion dated October 12, 2021 I grant the following orders:-a.There shall be stay of execution of the decree in Gatundu Chief Magistrate’s Court Civil Case No. 335 of 2018 on condition the appellant does provide the decretal sum which shall be deposited in interest earning account of both counsels. In default execution to issue.b.To that end, I order the amount deposited in this appeal deposited by the appellant be refunded to the appellant.c.At the reading of this ruling, I shall give directions on the hearing of the appeal, which directions will include filing by the appellant the record of appeal and the filing of the submissions to the appeal.d.The costs of the Notice of Motion shall abide with the outcome of this appeal.

RULING DATED AND DELIVERED AT KIAMBU THIS 6THDAY OF OCTOBER, 2022. MARY KASANGOJUDGECoram:Court Assistant : MouriceFor appellants : - Ms. Ongwenyi H/B Miss OnyanchaFor Respondent : - N/ARULINGdelivered virtually.MARY KASANGOJUDGE