[2024] KEELC 13806 (KLR)

Kiambati (Suing on his Behalf and on Behalf of the Estate of Salome Wangui Kiambati (Deceased)) v Mang'ara (Suing on Behalf of the Estate of Stephen Karanja (Deceased)) & another (Environment and Land Appeal E072 of 2022) [2024] KEELC 13806 (KLR) (13 December 2024) (Ruling)

Neutral citation: [2024] KEELC 13806 (KLR)

Republic of Kenya

In the Environment and Land Court at Thika

Environment and Land Appeal E072 of 2022

JG Kemei, J

December 13, 2024

Between

James Kiambati

Appellant

Suing on his Behalf and on Behalf of the Estate of Salome Wangui Kiambati (Deceased)

and

Salome Wanjiku Mang'ara (Suing on Behalf of the Estate of Stephen Karanja (Deceased))

1st Respondent

Jonathan Kiambati Mbaria (Sued on his own Behalf and as the Administrator of the Estate of Doris Wanjiru)

2nd Respondent

Ruling

1. Vide the Notice of Motion dated 12/8/2024, the 2nd Respondent/Applicant seeks in the main stay of execution of the Judgment of this Hon Court delivered on 30/7/2024. The gist of the Application is that the Applicant is apprehensive that unless an order of stay of execution is granted, the Appellant/Respondent will proceed to execute the Judgment to his detriment. That he has a good and arguable appeal with high chances of success that maybe rendered nugatory if the Application is not allowed. That the Application has been filed timeously and the Applicant is ready and willing to furnish reasonable security as the Court may direct pending the determination of his appeal.

2. The Application is supported by the Affidavit of even date of the Applicant, Jonathan Kiambati Mbaria. Reciting the above grounds, he annexed copies of his Notice of Change of Advocates, Notice of Appeal, request for typed proceedings and Memorandum of Appeal as JKM1 & JKM2.

3. The Application is opposed by the Appellant/Respondent through the Replying Affidavit sworn by James Kiambati deponed on 10/9/2024. Terming the Application as unmerited, he deposed that the Applicant has not demonstrated willingness to deposit the entire decretal sum as security for his appeal. That the Applicant will not suffer any prejudice if the orders sought are denied since the Respondent can refund the decretal sum in the event that the appeal succeeds. The deponent further avowed that he is entitled to enjoy the fruits of his Judgment in light of his illness as he requires attendant medication and treatment.

4. Directions were taken for parties to prosecute the Application by way of submissions.

5. The Applicant through the firm of Nyambura Munyua & Co. Advocates filed submissions dated 12/9/2024.

6. Three issues were drawn for determination; whether the Applicant has established a prima facie case; whether the Application was timeously filed and lastly whether the Applicant has established sufficient cause to warrant the orders sought. Answering the issues in the affirmative the Applicant submitted that his rights will be infringed if he pays damage as the Court ordered yet his actions are based on a Court order. That the Application was timeously filed within 13 days of delivery of Judgment and a request for typed proceedings was promptly made. That the eviction in place targets him and Sarah Wambui Mondo who occupied part of L.R Kamirithu/380 (the suit land) and it is therefore in the interest of justice that the Application be allowed.

7. The 1st Respondent did not oppose the Notice of Motion nor filed written submissions.

8. The germane issue for determination is whether the Application is merited.

9. The legal underpinnings for stay of execution pending appeal are anchored in Order 42 rule 6 (1) & (2) of the Civil Procedure Rules that;-“(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 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.”

10. The jurisdiction to grant stay lies at the discretion of this Court and is exercised on the basis of sound and settled principles, not arbitrarily or capriciously on a whim or in consideration of any extraneous matters. In the case of Butt Vs. Rent Restriction Tribunal [1982] KLR 417 the Court of Appeal gave guidance on how a Court should exercise discretion in an Application for stay of execution and held that: -“1. The power of the Court to grant or refusal an Application for a stay of execution is a discretion of power. The discretion should be exercised in such a way as not to prevent an appeal.

2. The general principle is 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 that appeal Court reverse the judge’s discretion. (sic) (trial Court Judgement).

3. A judge should not refuse a stay if there is a good ground for granting it merely because in his opinion a better remedy may be available to the Applicant at the end of the proceedings.

4. 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 with cause the order for stay of execution to lapse.”

11. Has the Applicant satisfied the conditions set in Order 42 rule 6 (2) of the Civil Procedure Rules above? The Applicant contends that the Respondent may execute the Judgment against him which would result in his eviction from the suit land. No evidence was tendered to support this contention. It is trite that execution on its own is does not amount to substantial loss because it is a lawful process. See the case of James Wangalwa & Another Vs. Agnes Naliaka Cheseto [2012]eKLR. In my view the Applicant has not demonstrated the substantial loss he stands to suffer if the order of stay is not granted. That notwithstanding the Court appreciates the nature of the impugned Judgment that the Applicant wishes to appeal against. The net effect of the Judgment allowed the Respondent’s claim in the trial Court which was contained in the amended plaint dated 21/9/2017. The Respondent prayed for orders against the Appellant for the sum of Kshs. 633,000/-; general damages for forceful eviction, loss of use and inconvenience and costs of the suit. The claim having been on allowed on appeal herein on 30/7/2024, the overall outcome is a positive Judgement for a liquidated amount of Kshs. 633,000/- and general damages of Kshs. 350,000/- with costs in favor of the Respondent.

12. On whether the Application was timeously filed, I note that the Application was filed on 13/8/2024, 14 days after delivery of the impugned Judgment. I opine that the same is not inordinate.

13. Lastly the Applicant deposed that he is ready and willing to abide by terms of security if so ordered by the Court. In an Application for stay of execution in an Application of this nature, an applicant has to satisfy the condition of security. In the persuasive decision of Gianfranco Manenthi & Another vs Africa merchant Assurance Co. 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 a 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 decree in order to enjoy the fruits of his Judgment in case the appeal falls.Further Order 42 should be seen from the point of view that a debt is already owed and due for payment to the successful litigant in a litigation before a Court which has delivered the matter in his favour. This is therefore to provide a situation for the Court that if the Appellant fails to succeed on appeal there could be no return to status quo on the part of the plaintiff to initiate execution proceedings where the Judgment involves a money decree. The Court would order for the release of the deposited decretal amount to the Respondent in the appeal….Thus the objective of the legal provisions on security was never intended to fetter the right of appeal. It was also put in place to ensure that Courts do not assist litigants to delay execution of decrees through filing vexatious and frivolous appeals. In any event, the issue of deposit of security for due performance of decree is not a matter of willingness by the applicant but for the Court to determine. Counsel for the applicant submitted that he is ready to provide a bank guarantee as security for due performance of the decree.”

14. Similarly in Arun C. Sharma Vs. Ashana Raikundalia T/A Rairundalia & 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.”

15. From the above persuasive decisions, it is clear that the issue of security is discretionary and it is upon the Court to determine the same. Purely in the interests of justice and to strike a balance between the competing Applicant’s right to be heard on appeal and the Respondent’s right to enjoy fruits of the Judgment, I make orders as f ollows;a.The Judgment of the Court issued on 30/7/2024 be and is hereby stayed on terms;b.The Applicant deposits Kshs. 100,000/= into a joint fixed account to be held in the names of the Applicant’s and 2nd Respondent’s Learned Counsel names pending the determination of the appeal within the next 30 days.c.The Applicant is further directed to file his appeal in the Court of Appeal within the next 90 days failing which the orders of stay of execution granted herein will automatically lapse.

16. The Appellant/Respondent will have costs of this Application.

17. Orders accordingly.

DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 13THDAY OF DECEMBER, 2024 VIA MICROSOFT TEAMS.J G KEMEIJUDGEDelivered online in the presence of;Malanga for Appellant/Applicant1st Respondent – AbsentMrs. Kerio for 2nd Respondent