[2022] KEHC 15054 (KLR)

Kimando v Ganaki Multipurpose Sacco Ltd (Civil Appeal E177 of 2022) [2022] KEHC 15054 (KLR) (Civ) (10 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15054 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E177 of 2022

JN Mulwa, J

November 10, 2022

Between

Primrose Wanjiru Kimando

Applicant

and

Ganaki Multipurpose Sacco Ltd

Respondent

Ruling

1. The Appellant Primrose Wanjiku Kimando is the Applicant in the application before me, dated 29th March, 2022. She was the Defendant in the primary suit filed against her by the Respondent Ganaki Multipurpose Sacco Limited for a liquidated claim of Kshs. 131,000/= plus costs and interest.

2. The Appellant filed a Memorandum of Appearance to the claim in time but the statement of defence out of time, upon which the Respondent obtained a default judgment on the 23/11/2021. By an application before the trial court dated 5/12/2021, the court declined to set aside the default judgment precipitating filing of this appeal and the application before the court.

3. The application is dated 29/3/2022 and filed pursuant to provisions of Order 42 rule 6, Order 51 Rule 1 of the Civil Procedure Rules, and Article 50 of the Constitution. The Applicant seeks Orders that:1. Spent2. Spent3. That the Honorable court be pleased to stay further proceedings in Nairobi CMCC No. E302 of 2021 pending hearing and determination of the appeal filed herewith.4. Spent5. That this Honourable Court be pleased to stay the execution of the judgment in default of defence endorsed on 23/11/2021 pending hearing and determination of the appeal filed herewith.

4. The application is premised on the grounds on the face thereof and Supporting Affidavit of Paul Kariba Kibiku, an advocate who has the conduct of the case on behalf of the Applicant, sworn on the 29/3/2022.

5. The failure to file the defence within time as averred in the Supporting Affidavit is that, the Applicant’s file was misplaced in the advocate’s office, but once traced, the defence was filed on the 16th August, 2021 and served, unknowingly that the Respondent had by then applied for entry of default judgment that was endorsed on the 23rd November, 2021.

6. In opposing the application, the Respondent filed a Replying Affidavit dated 4th May, 2022 also sworn by the Respondent’s Advocate Budah Kimathi on even date. The gist of the objection is that despite filing a Memorandum of Appearance, no defence was filed for a period of three months and only did so upon being alerted by a prompt from the e-filing portal, denying an allegation that the Applicants file had been misplaced, a reason the trial court found insufficient to set aside the default judgment, among other reasons stated in the trial courts ruling. Both parties proceeded to file submissions on the application.

7. I have carefully perused and considered the submissions, the affidavits for and against the application. I have also taken the liberty to look at the Memorandum of Appeal dated and filed on the 24th March, 2022 as well as the impugned ruling annexed to the Applicant’s affidavit as “PKK-4”. The ruling dated 2/3/2022 is the subject of the appeal. I have also considered the statement of defence filed out of time.

Issues for Determination Stay of proceedings pending appeal? 8. I agree with the Respondent’s submissions dated 17th June, 2022 that there are no further proceedings pending before the trial court, save for execution proceedings. This is so because the suit was for a liquidated claim, upon which judgment was entered and an attempt to set aside the default judgment was denied by the trial court by its ruling dated 2/3/2022. The appeal hereof challenges the ruling and therefore I find no existence whatsoever of any further proceedings. Judgment on a liquidated claim demands no further interrogation by way of evidence or otherwise, unless set aside by the court. As such, the trial court’s judgment remains final unless set aside, or varied by a court.

9. As to whether the default judgment was regular or not, the matter shall be considered under the appeal, and not subject to the application before me. See Mwala vs Kenya Bureau of Standards [2001] 1EA 148, Mohamed & another vs Shoka [1990] KLR 463. I therefore find no merit in prayer No. 3 of the application dated 29/3/2022. It is dismissed.

Stay of execution pending appeal? 10. The purpose for a stay of execution order pending appeal was ably stated in the case RWW vs EKN [2019] eKLR thus:“The purpose for an application for stay of execution pending 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…”

11. The court proceeded to render: -“…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… the court when granting the stay however, must balance the interests of the Appellant with those of the Respondent”.

12. The principles upon which an order of stay are set out under Order 42 Rules 6 (2) of the Civil Procedure Rules, provides: -“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; andb.Such security as the court may order for the due performance of such decree or order as may ultimately be binding on him has been given to the Applicant.

13. To order for a stay of execution is at the Court’s discretion, and largely depends on each peculiar circumstances of a case. What is before the court is a monetary decree, in the sum of Kshs. 131,000/= plus costs and interest as per the plaint dated 5/3/2021. The purpose for security, if substantial loss has been established to the satisfaction of the court, is not to punish the judgment debtor, but to guarantee that the Respondent does not suffer loss should the appeal be successful. That is stated under Order 42 Rule 6 where security for due performance of the decree is an essential condition to be met by an Applicant.

14. In a monetary decree, the Applicant must satisfy the condition for security, in the context that a party who holds a monitory decree should not be denied an opportunity to execute in order to enjoy fruits of his judgment should the appeal fail – see Arum C. Sharma vs Shana Raikundalia & co. Advocates & 2 others [2014] eKLR, Glanfranco, Manenthi & another vs Africa Merchant Assurance Co. Ltd [2019] e KLR.

15. While pondering on the security to be ordered, the parties’ interests must be considered so that none suffers prejudice by the orders the court would ultimately issue, as stated in the case; Mohamed Salim t/a Choice Butchery vs Nasserpuvia Memon Jamat [2013] e KLR thus;“That right of appeal must be balanced against an equally weighty right of the Plaintiff to enjoy the fruits of the judgment delivered in his favour. There must be a just cause for depriving the plaintiff of the right”

16. On the matter of security, the Applicant has not offered any form of security at all. As stated in the case cited above, Mohamed Salim t/a Choice Butchery (Supra), the interest of the Respondent must be considered, its curtailment in enjoying its fruits of judgment. The court is therefore enjoined to dispense justice to both parties. Ultimately, I find and hold that the Applicants right to appeal, and not to render the appeal nugatory, an order for stay of execution pending hearing and determination of the appeal ought to be granted upon the following terms:1. That the application dated 29th March, 2022 is allowed in terms of prayer 3 upon conditions that;2. The Applicant shall deposit as security, the judgment sum of Kshs. 131,000/= into court within 45 days of this ruling.3. In default, the Respondent shall be at liberty to progress with the execution of the judgment in the trial court, being the only proceedings pending.4. To progress the appeal, the Appellant is directed to file the Record of Appeal within 60 days of this ruling.5. Each party shall bear own costs of the application.

DATED SIGNED AND DELIVERED AT NAIROBI THIS 10TH DAY OF NOVEMBER 2022. J.N. MULWAJUDGE