[2022] KEHC 16019 (KLR)

Karumba v Watatua (Civil Appeal E018 of 2022) [2022] KEHC 16019 (KLR) (1 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16019 (KLR)

Republic of Kenya

In the High Court at Nyeri

Civil Appeal E018 of 2022

FN Muchemi, J

December 1, 2022

Between

Douglas Karumba

Applicant

and

Serah Njeri Watatua

Respondent

Ruling

Brief facts 1. The application dated April 20, 2022 seeks for orders for stay of execution of the ruling passed in Chief Magistrate’s Court at Nyeri Civil Case No E272 of 2021 on April 14, 2022 and notice to show cause dated January 18, 2022 pending the hearing and determination of the appeal.

2. The respondent has opposed the application and filed grounds of opposition dated May 5, 2022.

Applicant’s Case 3. It is the applicant’s case that the ruling in CMCC No E272 of 2021 was delivered on April 14, 2022 where the court dismissed his application dated February 1, 2022 for setting aside interlocutory judgment entered on October 22, 2021. The applicant contends that pursuant to Order 22 Rule 6 of the Civil Procedure Rules, notice of entry of judgment was not served upon him within ten days as stipulated. Being aggrieved with the ruling, the applicant has lodged an appeal herein vide a memorandum of appeal dated April 19, 2022. The applicant states that he shall suffer substantial loss as a notice to show cause has been served upon him and he is apprehensive that he shall be committed to civil jail unless orders for stay are granted. He further contends that he shall suffer irreparable loss and damage and the intended appeal shall be rendered nugatory unless the orders of stay are granted.

The Respondent Grounds of opposition 4. The respondent opposes the application and states that the application is frivolous, vexatious, bad in law and an abuse of the court process. She further contends that the application has been over taken by events as warrants of arrest have already been issued.

5. The applicant sought to rely on his supporting affidavit while the respondent canvassed the application by way of written submissions.

The Respondent’s Submissions 6. The respondent submits that the application is incurably defective as it has been brought through the wrong provisions of the law and ought to be dismissed. Moreover, the respondent relies on Order 42 Rule 6 of the Civil Procedure Rules and the case ofMichael Ntouthi Mitheu vs Abraham Kivondo Musau [2021] eKLR and submits that the applicant has not met the conditions to warrant him orders of stay of execution. Further, the respondent submits that a decree holder is entitled to the fruits of the judgment and the applicant has not shown why the same ought to be denied.

The Law Whether the applicant has satisfied the conditions set out in Order 42 Rule 6 of the Civil Procedure Rules for stay of execution pending appeal. 7. It is trite law that an appeal does not operate as an automatic stay of execution. The conditions which a party must establish in order for the court to order stay of execution are provided for under Order 42 Rule 6(2) Civil Procedure Rules. Order 42 Rule 6 of the Civil Procedure Rules stipulates:-1. 'No appeal or second appeal shall operate as a stay of execution or proceedings 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 orders set aside.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 1st 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.

8. Thus under Order 42 Rule 6(2) of the Civil Procedure Rules, an applicant should satisfy the court that:1. Substantial loss may result to him/her unless the order is made;2. That the application has been made without unreasonable delay; and3. The applicant has given such security as the court orders for the due performance of such decree or order as may ultimately be binding on him.

9. These principles were enunciated in Butt vs Rent Restriction Tribunal [1979] the Court of Appeal stated what ought to be considered in determining whether to grant or refuse stay of execution pending appeal. The court said that:-1. The power of the court to grant or refuse an application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal.2. Secondly, the general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judge’s discretion.3. Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the applicant at the end of the proceedings.4. Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. The court in exercising its powers under Order XLI Rule 4(2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security of costs as ordered will cause the order for stay of execution to lapse.Substantial loss

10. Substantial loss was clearly explained in the case of James Wangalwa & Another vs Agnes Naliaka Cheseto [2012] eKLR:-'No doubt in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. 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 the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.'

11. The applicant contends that he shall suffer substantial loss as the notice to show cause dated January 18, 2022 shall be executed and he shall be committed to civil jail despite the trial case not proceeding for hearing in the trial court. It is my considered view that the applicant has not demonstrated what substantial loss he stands to suffer as execution by itself does not amount to substantial loss. Execution is a lawful process and it is not enough for the applicant to state that he shall suffer substantial loss because the respondent has exercised her legal right in law. Furthermore, the applicant has not demonstrated how the execution shall render his appeal nugatory or will cause him to suffer irreparably.

Has the application has been made without unreasonable delay. 12. The instant application was filed on April 26, 2022 and the ruling was delivered on April 14, 2022. It is therefore my considered view that the application has been filed timeously.

Security of costs. 21. The purpose of security was explained in the case of Arun C Sharma vs Ashana Raikundalia t/a Raikundalia & Co Advocates & 2 Others [2014] eKLR the court stated:-'The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. It is not to punish the judgment debtor Civil process is quite different because in civil process the judgment is like a debt hence the applicants become and are judgment debtors in relation to the respondent. That is why any security given under Order 42 Rule 6 of the Civil Procedure Rules acts as security for the due performance of such decree or order as may ultimately be binding on the applicants. I presume the security must be one which can serve that purpose.'

13. Evidently, the issue of security is discretionary and it is upon the court to determine the same. Notably, the applicant has not offered any terms of security to warrant the application for stay.

14. Additionally, the right of appeal must be balanced against an equally weighty rigid right of the plaintiff to enjoy the fruits of the judgment delivered in his favour. In the case of Samvir Trustee Limited vs Guardian Bank Limited [2007] eKLR the court stated:-'The Court in considering whether to grant or refuse an application for stay is empowered to see whether there exist any special circumstances which can sway the discretion of the court in a particular manner. But the yardstick is for the court to balance or weigh the scales of justice by ensuring that an appeal is not rendered nugatory while at the same time ensuring that a successful party is not impeded from the enjoyment of the 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.'

15. The court in granting stay has to carry out a balancing act between the rights of the two parties. The issue herein is whether there is just cause depriving the respondent her right of enjoying her judgement. The execution due to be carried out is lawful and this court finds no reason to interfere with the process. In my view no sufficient cause has been shown as required by the law. In my view, the applicant has not satisfied the conditions to warrant him stay of execution.

16. The key condition under Order 42 rule 6 is that the applicant must demonstrate substantial loss. The applicant having failed to satisfy this condition puts him in a precarious position in so far as granting orders for stay is concerned.

17. Consequently, I am of the considered view that the applicant has failed to meet the requirement set out under Order 42 rule 6. For this reason, I find no merit in this application and dismiss it with costs to the respondent.

18. It is hereby so ordered.

DATED AND SIGNED AT NYERI THIS 1ST DAY OF DECEMBER, 2022. F. MUCHEMIJUDGERuling delivered through video link this 1st day of December, 2022