[2022] KEHC 3022 (KLR)

Kenya Power & Lighting Company v Asum & another (Civil Appeal E014 of 2022) [2022] KEHC 3022 (KLR) (17 June 2022) (Ruling)

Neutral citation: [2022] KEHC 3022 (KLR)

Republic of Kenya

In the High Court at Kericho

Civil Appeal E014 of 2022

AN Ongeri, J

June 17, 2022

Between

Kenya Power & Lighting Company

Applicant

and

George Asum

1st Respondent

Attorney General

2nd Respondent

Ruling

1. The Application coming for consideration in this ruling is the Notice of Motion dated 14/3/2022 seeking stay pending appeal.

2. The Application is based on the ground on the face of it and supported by the Affidavit of Irene Walala dated 14/3/2022 in which it is deposed that judgment was delivered on 3/2/2022 in Kericho CMCC No. 145 of 2015 in favour of the 1st Respondent for a sum of Kshs. 500,000/= plus costs and interests at court rates and a period of 30 days stay.

3. The Applicant stated that being aggrieved by judgment herein the applicant lodged an appeal vide a memorandum of appeal dated 1/3/2022 and that the appeal has a high chance of success.

4. The Applicant stated that it stands to suffer substantial loss should the 1st Respondent proceed to execute the impugned judgment and that if the orders for stay are not granted and the decretal sum is paid out to the 1st Respondent, the 1st Respondent would not be able to repay the amount in the event the appeal is successful therefore occasioning the applicant irreparable financial loss and/ or financial damage.

5. The Applicant further stated that it is a government body reliant on tax payers to offer a critical service and it was therefore in public interest to safeguard it from financial loss.

6. The Applicant stated that failure to stay execution pending outcome of the instant application would be prejudicial to it, subvert the ends of justice and render the appeal nugatory.

7. The Applicant stated that it was willing to deposit in court or in a joint interest earning account security for due performance of the decree and would abide in any additional conditions set by the court.

8. The Applicant stated that the instant application was filed without undue delay and that they would prosecute the appeal expeditiously subject to receipt of typed proceedings from the trial court.

9. Respondents opposed the Application and filed a Replying Affidavit dated 28/3/2022 sworn by the 1st Respondent George Asum in which he deposed that the application was filed as an afterthought, tailored to abuse court process and frustrate him as the decree holder from enjoying the fruit of judgment in his favour.

10. The 1st Respondent contended that the applicant had not adduced any scintilla of evidence or material that would demonstrate that the appeal would be rendered nugatory should stay not be granted.

11. The 1st Respondent further contended that the applicant had not demonstrated the nature or extent of substantial loss it would suffer in the event stay was not granted.

12. The 1st Respondent stated that in the unlikely event the intended appeal were to succeed, he owns various assets whose value outweighed the decretal sum and therefore would have no difficulties in repaying the decretal sum if required to do so.

13. The parties filed written submissions in the Application which I have duly considered.

14. The Applicant submitted that the intended appeal raised arguable issues with high chances of success and if stay were to be denied it would render the intended appeal nugatory and the applicants would suffer substantial loss as they would have to pay the decretal sum.

15. The Applicant contended that in the event the appeal were to succeed, they would not be able to recover the sum as the 1st Respondent was not in a financial position to refund the decretal amount. The Applicants were adamant that the 1st Respondent had not furnished the court with proof of means to buttress his financial position other than the averments in his Replying Affidavit.

16. Furthermore, the evidential burden to prove that one is a man of means and is in a position to repay the decretal amount if the appeal succeeds lay with the 1st Respondent. The Applicant cited the case of Erick Francis Wafula v Benjamin Sakwa Okomba [2020] eKLR.

17. The Applicant submitted that the application was made without undue delay, judgment was delivered on 3/2/2022 and the instant application filed on 14/3/2022.

18. The Applicant submitted that they were willing to deposit in court or in a joint interest earning amount the decretal amount as security for due performance of the decree, as such they were not opposed to the proposed deposit of the decretal amount save for the proposal to release half the decretal amount to the 1st Respondent. The Applicant cited the case of Jamii Bora Limited & another vs. Samuel Wambugu Ndirangu.

19. The 1st Respondent submitted that filing an appeal does not entitle one to a stay of execution by dint of the provisions of order 42 rule 6 (1) of the Civil Procedure Rules.

20. The 1st Respondent submitted that the instant application did not meet the threshold of requirements set out order 42 rule 6 (2) of the Civil Procedure Rules warranting grant of orders for stay of execution, the applicant had not demonstrated the nature and extent of substantial loss it stood to suffer in the event execution is not stayed.

21. The 1st Respondent submitted that the application was tailored to frustrate the efforts of the respondent to enjoy the fruit of his judgment and unnecessarily delay the determination of the matter which had taken too long to determine.

22. The 1st Respondent finally conceded that in the unlikely event the court allows the application for stay, the court ought to balance the interests of both parties and direct that the applicant releases half the decretal sum and costs to the respondent and the remaining half be deposited in an interest earning account in the name of both counsel within 30 days, failure to which the respondent be at liberty to execute.

23. The Legal Provision for stay of execution pending appeal in Order 42 Rule 6 (2) of the Civil Procedure Rules which states as follows:-“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.”

24. The Applicant has to satisfy the Court that:-(i)Substantial loss will result unless the order is granted.(ii)That the Application has been made without unreasonable delay.(iii)That the Applicant has given Security for the due performance of such decree or order as may ultimately be binding on him.

25. In the case of Samvir Trustee Limited v Guardian Bank Limited Nairobi (Milimani)HCCC 795 OF 1997 Warsame J. (as he then was) expressed himself as hereunder;“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 judgement.”

26. I find that the Application was made without undue delay the Judgment having been delivered on 3/2/2022 and the Application is dated 14/3/2022.

27. I also find that the applicant is willing to deposit the decretal amount in Court, which is a mark of good faith.

28. I accordingly allow the application dated 14/3/2022 on condition that the applicant deposits the decretal sum in an interest earning account held jointly by advocates for both parties within 60 days of this case.

29. The Applicant to pay the costs of the application.

DELIVERED, SIGNED AND DATED AT KERICHO THIS 17TH DAY OF JUNE 2022. A. N. ONGERIJUDGE