[2022] KEHC 146 (KLR)

Kilonzo v Anunda (Miscellaneous Civil Application E152 of 2021) [2022] KEHC 146 (KLR) (15 February 2022) (Ruling)

Neutral citation number: [2022] KEHC 146 (KLR)

Republic of Kenya

In the High Court at Machakos

Miscellaneous Civil Application E152 of 2021

MW Muigai, J

February 15, 2022

Between

Benson Mwangi Kilonzo

Applicant

and

Joseph Anunda

Respondent

Ruling

NOTICE OF MOTION DATED 17 TH AUGUST, 2021 1. That this Court grants stay of execution of the judgment and/or decree issued by Hon. D. Orimba (SPM) on 15th August, 2021 pending the hearing and determination of this application.

2. That this Court grants stay of execution of the judgment and/or decree issued by Hon. D. Orimba (SPM) on 15th August, 2021 pending the hearing and determination of this intended appeal.

3. That the warrant of attachment and sale issued on 29th July, 2021 and proclamation dated 29th July, 2021 or any form of advertisement or sale of the Defendant’s proclaimed properties be set aside and/or lifted unconditionally.

4. That the Court allow the applicant to furnish the court with security in the form of a bank guarantee from the DTB.

5. That the costs of this application abide the outcome of the appeal.

SUPPORTING AFFIDAVIT 6. That the intended appeal is not an afterthought since the applicants have proper grounds of appeal as per the annexed draft Memorandum of appeal; That the insurer is ready, willing and able to furnish the Court with a Bank Guarantee from DTB as security; that the appeal is merited, arguable and it raises pertinent points of law and fact thus it has overwhelming chance of success; that this Court extends time for filing the intended appeal and the Applicants be granted leave to appeal out of time against the award on liability and quantum; that the Warrants of attachment and sale issued on 29th July, 2021 and proclamation dated 29th July, 2021 or any form of advertisement or sale of the Defendant’s proclaimed properties be set aside and/or lifted unconditionally.

7. The Respondent filed Replying Affidavit on 12th October 2021 and raised the following grounds;(a)That no judgement was ever rendered by Hon. Orimba (SPM) in this matter and that the Applicants Advocates do not even know which Court rendered judgment and whose orders they are seeking to stay.(b)That the Application is frivolous, vexatious and an abuse of the Court process. It is brought in bad faith more than two (2) months after judgment.(c)That the Applicant is forum shopping and abusing the Court process and already has stay orders in Kangundo SPMCC No. 94 of 2020. (d)That on 15th June, 2021 Hon. Opanga delivered judgment and granted the Applicants 45 days stay which the Respondent did not oppose. Several correspondences to have the Applicants settle the decretal amount have been futile.(e)That no Appeal has been filed against the judgment delivered on 15/06/2021 despite the period providing for filing an Appeal having lapsed.(f)That the Applicants should deposit half of the decretal amount with the Respondent’s Advocates and the other half with the court.

APPLICANT’S WRITTEN SUBMISSIONS 8. The Applicant relies on Order 42 Rule 6 of the Civil procedure Rules 2010 which provides;“6. Stay in case of appeal;1. No appeal or second appeal shall operate as a stay 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 form, 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 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.

9. In application for stay pending appeal, in the Subordinate Courts it is not a requirement to show that the appeal has high chances of success, the Applicant only needs to show he has an arguable appeal. The Court to Appeal in Kenya Revenue Authority –vs- Sidney Keitany Changole & 3 Others [2015] where the court held:“This Court has further held that the Applicant need only prove or establish one arguable point noting that an arguable appeal is not necessarily one that will succeed but one that is not frivolous.”

10. On the issue of whether substantial loss will occur from refusal to grant stay reliance is made in the case of Edward Kamau & Anor –vs- Hannah Mukui Gichuki & Anor [2015] eKLR R. E Aburili – J on this issue is opined as follows:“This court appreciates that the applicants being a party seeking favourable exercise of the court’s discretion is under a legal duty to place some material before the court upon which such discretion should be exercised. In other words they should prove that the Respondent is impecunious that if the decretal sum is paid then they will not recoup should the appeal succeed, thereby rendering it nugatory. They have also argued that although the respondent is offering a bank guarantee, that is not deposed on her affidavit of means.”

11. It was submitted that the application has been filed so quickly under vacation rules after the delivery of the judgment. It is noted that the appeal was filed on 19th August, 2021 soon after the delivery of judgment thus signalling the applicant’s interest in pursuing the appeal. It’s only after the Respondent’s counsel wrote to the Applicant’s counsel about the intention to execute that the Applicant found it necessary to file the instant application. There is thus no inordinate delay on the part of the Applicant.

12. On the issue of security, it was submitted that the Appellant is ready and willing to provide security in the form of a bank Guarantee pending the hearing and determination of the appeal. This is an acceptable mode of furnishing security. Reliance was made in the case of Gianfranco Manenthi & Anor –vs- Africa Merchant Assurance Company Limited [2019] eKLR.

RESPONDENT’S WRITTEN SUBMISSIONS 13. It is submitted that the application is frivolous, vexatious and malicious ploy by the applicant’s advocates to abuse the Court process and waste the Court’s time to the detriment of the Respondent. This is evidence from the outset where the Applicants’ seek to Stay Orders issued by Hon. D. Orimba (SPM) when clearly judgment and orders in the lower Court were delivered and issued by Hon. Martha Opanga (SRM) and not Hon. D. Orimba (SPM) as stated by the Applicants.

14. That the applicants have lodged a similar application dated 17th August, 2021 in the Lower Court and obtained stay orders. The gross abuse of Court process by the Applicants is evident. Why would a party file multiple applications in different courts and pursue multiple court orders simultaneously if not for extraneous and collateral purposes not related to justice?

15. For the Applicant’s to enjoy stay orders from 15th June, 2021 to October, 2021 and to hoodwink the Court that they stand to suffer substantial loss is really abuse of Court Process meant to deny the Respondent from enjoying legitimate fruits of judgement

16. In the lower court, the Respondent had sought an award of Kshs.1,512,540/- for the wrongful death of the minor Lynne Ndege (deceased). The lower court awarded Kshs.180,000/- as general damages. It cannot be said that the Applicants will suffer substantial loss.

17. That the timing of the current application is very suspect and mockery to the principle that justice delayed is justice denied.

18. That the judgment in this matter was rendered on 15th June, 2021. Prior to the delivery of judgment, one Ms Mukami for the applicants sought to arrest the same having filed an application that they be given a chance to file their submissions. It is noteworthy that the matter was last previously in the lower court in March, 2021 and the Applicants had not filed their submissions and sought time to do so which time was granted. They did not file submissions for three (3) months even after being granted more time.

19. The court delivered judgment on 15/06/2021 and the Applicants’ lawyers sought 45 days Stay Order pending Appeal, the oral applications for stay orders in the Lower court was not opposed by the Respondent’s Counsel.

20. That on 27th July, 2021 the Respondent’s lawyers forwarded a letter via email and served the letter on 30th July, 2021 tabulating costs and requesting the Applicants to settle the decretal amount. The Applicants advocates never responded to this letter.

21. That between 15th June, 2021 and 17th August, 2021 more than two months had lapsed and the Respondent’s had been enjoying stay orders for more than 60 days. Having failed to respond to the correspondence, the Respondent’s lawyers forwarded a draft decree to the Court for approval which decree was approved.

22. Order 21 rule 8 CPR is discretionary and not mandatory because it provides thus “any party in a suit in the High Court may prepare a draft decree.

23. Furthermore, if the Respondents are disputing the costs as tabulated, why have they not settled the principal judgment sum for more than 4 months’ now since judgment was delivered on 15th June, 2021?

24. The Applicants have offered a general bank guarantee nothing specific, nothing concrete. We submit that this is not enough. That should the Court be inclined to give them the Orders sought it should do so on condition that they release half of the decretal amount to the Respondent and the other half be deposited in court. We believe this would be fair to both parties. They should also be ordered to file and serve the Record of Appeal within 30 days from the date of the Court’s Ruling on this application failure which the stay orders should lapse automatically.

DETERMINATION 25. The issue for determination is whether stay of execution should be granted or not.

26. The case-law that amplifies the requirements for granting stay of execution pending appeal under Order 42 Rule 6 CPR 2010 is as follows;GLOBAL TOURS &TRAVELS LIMITED, NAIROBI HC WINDING UP CAUSE NO. 43 OF 2000 The Court opined thus:“As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of Justice .... the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously” (Emphasis added)

27. In Kenya Power & Lighting Company Limited vs Esther Wanjiru Wokabi, Civil Appeal No. 326 oF 2013 the Court was pointed out that:“To my mind, the courts discretion in deciding whether or not to grant stay of proceedings as sought in this application must be guided by any of the following three main principles;(a)Whether the applicant has established that he/she has a prima facie arguable case;(b)Whether the application was filed expeditiously; and(c)Whether the applicant has established sufficient cause to the satisfaction of the court that it is in the interest of justice to grant the orders sought.”

28. The court, in RWW vs. EKW [2019] eKLR, addressed its mind to the purpose of a stay of execution order pending appeal, in the following words:“The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.”

ARGUABLE APPEAL 29. As to what constitutes an arguable appeal, the Court of Appeal in Nairobi Women’s Hospital vs. Purity Kemunto [2018] eKLR:-“To say that an appeal is arguable is another way of saying that it is not frivolous and that it raises a bona fide issue deserving full consideration by the Court. Even one bona fide issue will satisfy the requirement, for the law does not look for a multiplicity of arguable issues.”

30. Despite judgment delivered by the Trial Court 15th July 2021, to date, the Applicant after filing the instant application and was granted stay of execution orders by this Court. Whereas Section 79 of CPA grants a party right of appeal, the memorandum of appeal filed annexed to the application of 19th August 2021 does not raise any question as to liability but quantum contesting the award of Ksh 180,000/-; liability is not contested. The Memorandum of Appeal is filed after requisite 30 days from date of delivery of the judgment of Trial Court of 15th June 2021.

UNREASONABLE DELAY 31. The judgment of the Trial Court was delivered on 15th July 2021 and the Respondent/Applicant was granted 45 days stay of execution. The Applicant filed an appeal outside the requisite 30 days. The Draft memorandum of appeal was filed with the instant application of 19th August 2021.

SUBSTANTIAL LOSS 32. The Judgment of the Trial Court of 15th June 2021 is not annexed but the principal sum is general damages at Ksh 180,000/- special damages at Ksh 2,540/- as shown by Plaintiff’s Advocates letter of 27th July 2021. This Court notes the Defendants are insured and the amount of Ksh 182,000/- paid the Insurer on behalf of the Defendants would not cause substantial loss by any stretch of imagination.

FURNISH SECURITY 33. The Applicant submitted bank guarantee to be lodged in Court as security.FINDING(i)The Trial Court delivered judgment on 15th June 2021 and the Applicants’ lawyers sought 45 days Stay Order pending Appeal, the oral applications for stay orders in the Lower court were not opposed by the Respondent’s Counsel;(ii)That the Applicants lodged a similar application dated 17th August, 2021 in the Lower Court and obtained stay orders;(iii)That on 27th July, 2021 the Respondent’s lawyers forwarded a letter via email and served the letter on 30th July, 2021 tabulating costs and requesting the Applicants to settle the decretal amount.(iv)The Applicants advocates never responded to this letter;(v)That between 15th June, 2021 and 17th August, 2021 more than two months had lapsed and the Respondent’s had been enjoying stay orders for more than 60 days. Having failed to respond to the correspondence, the Respondent’s lawyers forwarded a draft decree to the Court for approval which decree was approved.

34. Taking into account that the suit before the Trial Court was on the untimely death of a child and the Respondent is/was suing on behalf of the Estate and liability at 100% against the Defendant is not contested it is inhuman to delay the payment of the decretal sum to the family that lost their child, having been in Court pursuing justice and even after judgment, they cannot enjoy the fruits of their judgment. It is unconscionable and the Court shall not countenance the same. There is no legal basis for this Court to exercise judicial discretion in the Applicant’s favour given the set out circumstances. The justice of the case demands settlement of the claim as the Applicant pursues their right of appeal. The amount involved will not render the appeal nugatory.

DISPOSITIONThe Application of 19th August 2021 for stay of execution pending appeal is dismissed with costs.DELIVERED SIGNED & DATED IN OPEN COURT ON 15THFEBRUARY 2022. M.W. MUIGAIJUDGE