[2017] KEHC 9613 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL DIVISION

HIGH COURT CIVIL APPEAL NO. 438 OF 2017

KENINDIA ASSURANCE CO. LIMITED..................................APPELLANT

VERSUS

ALICE MUGURE KIMANI......................................................RESPONDENT

T/A A. M. KIMANI & CO ADVOCATES

RULING

1. The Appellant Kenindia Assurance Co. Limited in the application dated 21st August, 2017 seeks orders that there be a stay of execution of the decree and or order issued in Milimani CMCC 2159 of 2017 pending the hearing and determination of this Appeal

2. The Respondent Alice Mugure Kimani T/a A. M. Kimani & Company Advocates subsequently filed the application dated 29th August, 2017 seeking orders that the temporary orders issued by this court on 22nd August, 2017 staying execution of Decree in CMCC 2159 of 2017 be vacated forthwith.

3. The two applications were heard simultaneously as they related to the same subject matter.

4. According to the Appellant the Respondent filed suit in the Lower Court claiming a sum of Ksh.34,873/= together with interest at 14% from 11th September, 2008. That the Respondent entered appearance and filed a defence. That subsequently summary judgment was entered in favour of the Respondent. That the sum of Ksh.53,181/= paid by the Appellant to the Respondent was not taken into account when the warrants of attachment for the decretal sum of Ksh,75,847/= were issued.

5. In opposition to the application, it is stated in the replying affidavit that although the sum of Ksh.53,181/= was received by the Respondent, that was only part payment of claim as there was non-payment of further interest and costs of the suit. That the summary judgment took into account that the principal sum of Ksh.34,873/= had been paid and the lower court only proceeded to enter judgment for the costs and interest. That the balance of Ksh.18,308/= which remained after the deduction of Ksh.34,873/= from the sum of Ksh.53,181/= paid was credited in the attachment warrants and the issue of double payment does not arise. The Respondent saw the application under consideration as a malicious attempt to deny her the enjoyment of the fruits of her judgment, hence the application dated 29th August, 2017 which seeks orders that the temporary stay of execution orders herein be lifted. In the application dated 29th August, 2017, the ruling of the Lower Court and the decree have been exhibited.

6. The Appellant in response filed a replying affidavit which points out the procedural steps allegedly not taken by the Respondent in following due process in the lower court before the warrants of attachment were issued. It is reiterated that the sum of Ksh.53,181/= paid was not disclosed to the lower court when the application for summary judgment was made. The security for the due performance of the decree was offered.

7. I have considered the two applications and the submissions made by the respective counsels for the parties herein.

8. Order 42 rule 6 (2) provides for the following conditions to be met in an application for stay of execution.

“6. (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. In the case at hand, the ruling of the lower court was delivered on 3rd August, 2017. The application for stay of executed was filed on 22nd August, 2017. There was no inordinate delay.

10. On substantial loss, the Appellant has averred that it will suffer since it will be making a double payment. However, it is noted that the Respondent acknowledges the payment of Ksh.53,181/= in the replying affidavit and raises the issue of the non-payment of further interest and costs. The Respondent’s averment that the ruling of the Lower Court took into account the payment of the principal sum of Ksh.34,873/= and did not enter judgment for the same is supported by the ruling of the Lower Court dated 3rd August, 2017 (annexture AMK 3a). In the said ruling, the Respondent was awarded interest and costs. There are no allegations that the Respondent is not capable of refunding the Decretal sum. Although the Appellant has offered security for the due performance of the decree, he has not demonstrated the substantial loss to be suffered if stay is not granted. As stated by the Court of Appeal in the case of Kenya Shell Limited vs. Kibiru (1986) KLR:

“Substantial loss in its various forms, is the cornerstone of the jurisdictions for granting a stay. That is what has to be prevented.”

11. On whether the appeal against the said ruling has merits or not that is not one of the conditions of stay in (See for example Nakuru HCCC 211/98- Martha Njeri Wanyoike & 3 others –vs- Peter Machewa Mwangi & 5 Others; Bake ‘N’ Bite (Nrb) Limited –vs- Daniel Mutisya Mwalonzi [2015] eKLR).

12. Having arrived at the above findings, the application dated 29th August, 2012 which seeks orders that the stay of execution orders be lifted therefore succeeds.

13. In the upshot the application dated 21st August, 2017 is dismissed with costs. The application dated 29th August, 2017 is allowed with costs.

Dated, signed and delivered in Nairobi this 7th day of Nov., 2017

B. THURANIRA JADEN

JUDGE