[2022] KEHC 10522 (KLR)

Kimani v Muriuki (Civil Appeal 598 of 2019) [2022] KEHC 10522 (KLR) (Civ) (17 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10522 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 598 of 2019

JK Sergon, J

June 17, 2022

Between

Joseph Kamau Kimani

Appellant

and

Nancy Waithera Muriuki

Respondent

(Emanating from the judgment in Milimani Civil Suit No 5330 of 2018: Nancy Waithera Muriuki v Joseph Kamau Kimani delivered on September 26, 2019)

Ruling

1)The instant application is dated 7th of July, 2021 and is seeking substantially for a stay of execution of the judgment in Milimani Civil Suit No 5330 of 2018: Nancy Waithera Muriuki Vs Joseph Kamau Kimani which entered on September 26, 2019.

2)The application is supported by grounds stated on the face of it and facts deponed in the supporting affidavit of Joseph Kamau Kimani sworn on July 7, 2021. It is stated that judgment was entered in favor of the respondent for Kshs 606,150 less 20% contribution plus costs and interests at court rates.

3)Further, that the applicant’s application for stay of execution pending the hearing and determination of the appeal was dismissed by the trial court.

4)The appellant avers that the instant appeal has high chances of success since it is based on the damages being excess and not commensurate to the injuries sustained.

5)It is also averred that the respondent has commenced execution proceedings and the hearing of the notice to show cause why the appellant should not be arrested and committed to civil jail has been fixed for July 14, 2021.

6)Further that unless the order for stay of execution is granted, the object of the application and the appeal will be defeated and the appellant will be subjected to great loss. The applicant is willing to comply with the conditions this court will set.

7)The application is opposed by the respondent who filed the replying affidavit of Nancy Waithera Muriuki sworn on September 2, 2021. It is stated that the application is fatally defective, devoid of merit and offends clear provisions of law hence should be dismissed. That the applicant filed a similar application in the trial court which was dismissed.

8)Further that the applicant has not tendered sufficient explanation for the delay in bringing the instant application since the earlier application was dismissed on October 29, 2020 and that the applicant has not met the conditions for the grant of stay and that the same has been prompted by execution.

9)That the intended appeal has no merit and the applicant has not demonstrated how the same will be rendered nugatory if execution proceeds.

10)The application by consent of parties was canvassed by way of written submissions which i have read and considered.

11)The well settled principles guiding the grant for stay of execution pending appeal are provided under order 42 rule 6(2) of the Civil Procedure Rules which provides as follows: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; andb)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.

12)From the forgoing, it is safe to say that for a grant of stay order to issue, an applicant must satisfy the court that;a)Substantial loss may result unless the order is madeb)The application has been made without unreasonable delayc)Security for costs as the court orders has been given

13)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. 9. Indeed to grant or refuse an application for stay of execution pending appeal is discretionary. The court when granting the stay however, must balance the interests of the appellant with those of the respondent.”

14)As regards the principle on substantial loss, it is not enough for an applicant to state that a respondent is a man of straw. He must substantiate it as a matter of fact. As to what substantial loss is. it was observed inJames Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, that:“No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under order 42 rule 6 of the CPR. This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal ... the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”

15)In Ndeti Muli & 2 others v Hogla Mkando Omari & another (both suing as representatives of the Estate of Francis Mwatembo Mulonza) [2019] eKLR the learned judge observed that;“The law, however appreciates that it may not be possible for the applicant to know the respondent’s financial means. The law is therefore that all an applicant can reasonably be expected to do, is to swear, upon reasonable grounds, that the respondent will not be in a position to refund the decretal sum if it is paid over to him and the pending appeal was to succeed but is not expected to go into the bank accounts, if any, operated by the respondent to see if there is any money there. The property a man has is a matter so peculiarly within his knowledge that an applicant may not reasonably be expected to know them. In those circumstances, the legal burden still remains on the applicant, but the evidential burden would then, in those circumstances, where the applicant has reasonable grounds which grounds must be disclosed in the application that the respondent will not be in a position to refund the decretal sum if the appeal succeeds, have shifted to the respondent to show that he would be in a position to refund the decretal sum.”

16)The Court of Appeal inJob Kilach v Nation Media Group & 2 others [2006] eKLR observed that;“That notwithstanding, it cannot be lost sight of the fact that the decretal sum is a very large sum, which by Kenyan standards very few individuals will be in a position to pay without being overly destabilized.”

17)In the instant application, there is an application pending hearing requiring the applicant to show cause why he should not be committed to civil jail. In my view, in the event the order is not granted, the applicant is likely to be committed to civil jail which is grave as it denies him the liberty and freedoms guaranteed by the constitution. This is substantial loss.

18)The applicant has not explained the delay in bringing the instant application. The application that was dismissed in the lower court was on October 29, 2020 whereas this application was filed on July 8, 2021. This 9 months delay has not been explained.

19)The applicant is willing to abide by the conditions of this court as to security. I find in the interest of justice that the applicant should be given a chance to pursue his right of appeal.

20)I hereby grant an order for stay of execution of the decree on condition that the applicant deposits the decretal sum in a joint interest earning account in the names of the advocates of both parties on record within 45 days of this ruling, failure to which execution shall issue. Costs of the motion to abide the outcome of the suit.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 17TH DAY OF JUNE, 2022. .....................................J. K. SERGONJUDGEIn the presence of:………………………………… for the Appellant…………………………………. for the respondent