[2023] KEHC 24734 (KLR)

Karuga & another v Munyua (Civil Appeal E245 of 2022) [2023] KEHC 24734 (KLR) (2 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24734 (KLR)

Republic of Kenya

In the High Court at Kiambu

Civil Appeal E245 of 2022

PM Mulwa, J

November 2, 2023

Between

Peter Mwangi Karuga

1st Appellant

Peter Chege Kimani

2nd Appellant

and

Solomon Waithaka Munyua

Respondent

Ruling

1. By a Notice of Motion application dated 7th November 2022, the applicants herein substantially seek stay of execution of the judgment in Kiambu CMCC No. 534 of 2018 pending the hearing and determination of this appeal.

2. The said application is supported by the annexed affidavit of Peter Mwangi Karuga, the 1st appellant/applicant herein sworn on 7th November 2022. He avers that judgment was delivered on 28th September 2022, in favour of the Respondent against the Appellants/Applicants, in which the court found liability at 100% and proceeded to award Kshs 900,000/= general damages and Kshs. 8,940/= special damages plus costs and interests. He stated the award is excessively high and he has lodged the instant appeal challenging the same. In his view, the appeal has high chances of success.

3. He deposed that the Respondent is a person of unknown means hence the Applicant are apprehensive the Respondent is not a man of means and would not refund the monies if the appeal is successful. That his insurer is willing to provide security for the entire decretal sum in the form of a bank guarantee as security during the pendency of the appeal.

4. In opposing the application, the Respondent filed grounds of opposition stating inter alia, that the Applicants be compelled to deposit the whole decretal amount in court or in the alternative the same to be deposited in a joint interest-earning account. In the event that the prayers sought were to be granted, the applicants are to pay the balance of the decretal amount together with the advocate’s costs into the Respondent’s advocate bank account. That the letter of establishment of a Bank Guarantee from Family Bank is not proof of deposit of the decretal sum.

5. The application was canvassed by way of written submission. The Applicants filed submissions while the Respondent chose to rely on the grounds of opposition.

6. The Applicant submitted there was no unreasonable delay in bringing the application. That they were reasonably apprehensive they will suffer loss of Kshs. 908,940/= plus costs and interest as there is imminent danger of execution by the Respondent. The Applicants were ready and willing to comply and deposit security as ordered by the court.

Determination 7. I have considered the application, the supporting affidavit, the grounds of opposition and the submissions filed.

8. The principles for granting the stay of execution are well settled under Order 42 rule 6(1) and (2) of the Civil Procedure Rules which provides as follows:“(1)No appeal or second appeal shall operate as a stay of execution or proceeding under a decree or order appealed from except 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.(2)No order for stay of execution shall be made under subrule (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.”

9. From the above provision the court has the power to grant a stay of execution on conditions that the applicant demonstrates that –a.Substantial loss will result to the applicant if stay is not granted; andb.Security is given by the applicant for the due performance of any decree as may eventually become binding on the appellant upon determination of the appeal; andc.The application is brought without unreasonable delay.

10. The Respondent failed to discharge his evidential burden of proving that he is a man of means. As the appeal challenges the decretal sum and special damages awarded to the Respondent, the court will try and balance the rights of both parties in the administration of justice. The Respondent has a right to enjoy the fruits of the judgment, while the Applicants have the right to be protected from suffering substantial loss and the appeal being rendered nugatory.

11. In balancing the interest of both parties, this court finds in favor of the Applicant and who have proved that they will suffer substantial loss if the stay orders are not granted.

12. The judgment herein was delivered on 28th September 2022, while the appeal was filed on 14th October 2022. The instant application was filed on 7th November 2022. This court finds that there was no delay.

13. In Gianfranco Manenthi & another vs. Africa Merchant Assurance Company Ltd [2019] eKLR, the court observed: “… the applicant must show and meet the condition of payment of security for due performance of the decree. Under this condition, a party who seeks the right of appeal from money decree of the lower court for an order of stay must satisfy this condition on security. In this regard, the security for due performance of the decree under order 42 rule 6(1) of the Civil Procedure Rules, it is trite that the winner of litigation should not be denied the opportunity to execute the degree in order to enjoy the fruits of his judgment in case the appeal fails.”

14. From the record the Applicant on 1st December 2022 deposited in court half the decretal amount of Kshs 454,470/= in due performance of security as per conditional stay issued by the court on 9th November 2022. In the circumstances, therefore, I find the Applicant has fulfilled the condition for security in due performance of the decree.

15. The last issue is whether the appeal is arguable. According to the applicant, the issue of contention is on the award of general and special damages which he feels were excessive. It is my finding that the Applicants raise arguable issues.

16. The Applicants have satisfied the ingredients necessary for the grant of an order of stay.

17. In the end, I make the following orders: -a.There be a stay of execution of the decree/judgement delivered on 28th September 2022 in Kiambu CMCC no. 534 of 2018 pending the hearing and determination of the appeal.b.Costs to abide by the outcome of the appealOrders accordingly.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 2ND DAY OF NOVEMBER 2023. P.M. MULWAJUDGEIn the presence of:Ms. Ayiera h/b for Mr. Njuguna - for the Applicants/AppellantsN/A - for the Respondent