[2022] KEHC 10521 (KLR)

Kimfy East Africa Limited v Sichana (Civil Appeal E053 of 2022) [2022] KEHC 10521 (KLR) (Civ) (17 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10521 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E053 of 2022

JK Sergon, J

June 17, 2022

Between

Kimfy East Africa Limited

Applicant

and

Ben Sichenga Sichana

Respondent

Ruling

1. The subject matter of this ruling is the Notice of Motion dated 1st February, 2022 taken out by the appellant/applicant herein, in which it sought for an order for stay of execution of the judgment delivered on 12th January, 2022 in CMCC NO. 2856 of 2013 and all consequent orders, pending the hearing and determination of the appeal.

2. The Motion is supported by the grounds set out on its body and the facts stated in the affidavit of Alice Mworia, the Human resource manager of the applicant.

3. The respondent opposed the Motion by filing the replying affidavit he swore on 14th March 2022.

4. When the Motion came up for interparties hearing the parties respective advocates chose to rely on the averments made in their respective affidavits.

5. I have considered the grounds laid out on the body of the Motion, the facts deponed in the affidavits supporting and opposing the Motion and the brief oral arguments.

6. A brief background of the matter as seen in the record is that the respondent instituted a suit before the Chief Magistrate’s Court against the applicant vide the amended plaint dated 1st September 2016 and sought for general damages and special damages of Kshs.164,500/= together with costs arising from a road accident along Mombasa Road.

7. Upon hearing the parties, the court vide the judgment delivered on 21st January 2022 awarded the respondent an aggregate sum of Kshs.1,304,500/= as damages plus costs of the suit and interest at court rates. Being aggrieved by the aforementioned decision, the applicant appealed to this court against the lower court’s judgment.

8. In her affidavit filed in support of the motion dated 1/02/2022, Ms. Alice Mworia, the Human Resource Manager of the appellant/applicant stated that the applicant feels aggrieved by the manner in which the lower court arrived at its decision despite the glaring inconsistencies in the respondent’s evidence.

9. She contends that the applicant is going to incur substantial loss unless the application is allowed and a stay of execution granted pending the appeal.

10. She further stated that the applicant has an arguable appeal that has a higher chance of success and thus the scales of justice tips in its favour and that the respondent herein will not suffer any prejudice if orders are granted as prayed.

11. She further stated that the applicant is willing and able to offer security within reasonable time as shall be deemed fit by the court and that the respondent is not in a position to make a refund.

12. In response, Mr.Ben Shichenga Shichana stated that the applicant will not suffer irreparable loss by granting the prayers therein will continue to prejudice him as he is in great need of judgment money for medical care and alleviation of his suffering.

13. He avers that the applicant’s appeal has no chance of success because the judgment of the lower court was based on the facts and law adduced by the respondent herein and that this instant application should therefore be dismissed with costs because they are undeserving of such orders.

14. I have considered the grounds stated on the face of the application plus the facts depend in rival affidavits.

15. The principles guiding the grant of an application for stay of execution pending appeal are well settled. These principles 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; 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.

16. In the Court of Appeal decision in the case of Nairobi Civil Application No. 238 of 2005 National Industrial Credit Bank Limited v Aquinas Francis Wasike & another as followed by the High Court in Stanley Karanja Wainaina & another v Ridon Anyangu Mutubwa [2016] eKLR it was held that:“This court has said before and it would bear repeating that while the legal duty is on an applicant to prove the allegation that an appeal would be rendered nugatory because a respondent would be unable to pay back the decretal sum, it is unreasonable to expect such an applicant to know in detail the resources owned by a respondent or lack of them. Once an applicant expresses a respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the respondent to show what resources he has since that is a matter which is peculiarly, within his knowledge.”

17. In the case at hand, the Respondent has not disclosed any source of income that he would use to refund the applicant the decretal amount should the appeal succeed. Indeed the respondent’s averment that he is in dire need of money for medical care ,can only confirm that he will not be able to refund the decretal sum were the applicant’s appeal to succeed.

18. The applicant has thus established that it will suffer substantial loss if the intended execution is not stayed. It also follows that if the respondent executes the judgement and the applicant’s appeal succeeds, then not only will the applicant suffer substantial loss but the appeal will also be rendered nugatory.

19. Was the application filed without unreasonable delay? The application has been filed one month after the delivery of the judgement. It is noted that the appeal was filed on 1st February, 2022 soon after the delivery of judgement thus signaling the applicant’s interest in pursuing the appeal. There is thus no inordinate delay on the part of the applicant.

20. The applicant has indicated its readiness to furnish security for the due performance of the decree. The respondent asserts that he is entitled to equal treatment before the law. The answer to the respondent’s concern is that his interests will be taken care of by the applicant depositing the decretal amount. Once the appeal is determined, the winner will have ready access to the money.

21. A perusal of the memorandum of appeal shows that the applicant is appealing against the entire judgment. The respondent states that he needs the money for medical treatment however, there is no way that he can be given the decretal amount since there is no guarantee that the respondent will be in a position to refund should the appeal turn successful.

22. In the end the motion dated 1st February 2022 is found to be meritorious and is allowed. Consequently, an order for stay of executions pending appeal is granted on condition that the appellant deposits the entire decretal sum in an interest earning account in an interest earning account in the joint names of the advocate and/or firms of advocates appearing in this appeal within 45 days. In default the order for stay of execution shall automatically lapse. Costs of the motion to abide the outcome of the appeal.

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/Applicant...................... for the Respondent