[2022] KEHC 15915 (KLR)

Laico Regency Hotel v Gitu (Civil Appeal E745 of 2022) [2022] KEHC 15915 (KLR) (Civ) (2 December 2022) (Ruling)

Neutral citation: [2022] KEHC 15915 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E745 of 2022

JK Sergon, J

December 2, 2022

Between

Laico Regency Hotel

Applicant

and

Samuel Muiruri Gitu

Respondent

Ruling

1. This ruling is predicated on the notice of motion dated September 22, 2022 taken out by the appellant/applicant and supported by the grounds set out on its body and the facts stated in the affidavit of Jamal Ahmed. The applicant sought for an order for a stay of execution of the judgment delivered by the Small Claims Court in Nairobi SCCCOM No 824 of 2021 on August 25, 2022 pending the hearing and determination of the appeal.

2. In retort to the said motion, the respondent swore a replying affidavit on October 11, 2022 and also filed the grounds of opposition of like date echoing the averments made in the replying affidavit.

3. The instant motion was canvassed through brief oral arguments whereby the parties’ respective advocates chose to rely on the relevant documents filed.

4. I have considered the grounds laid out on the body of the motion; the facts deponed to in the supporting and replying affidavits respectively; the grounds of opposition and the reiterating oral submissions.

5. Before I address myself on the merits of the motion, I note that the respondent raised a preliminary issue which would require my consideration and determination at this stage; namely that the appeal in question does not raise any questions of law as required under the proviso of section 38(1) of the Small Claims Act No 2 of 2016 which expresses that:“A person aggrieved by the decision or an order of the court may appeal against that decision or order to the High Court on matters of law.”

6. The respondent is of the view that the appeal is premised purely on matters of fact.

7. Upon my perusal of the draft memorandum of appeal on record and without necessarily going into the merits thereof at this stage, it is apparent that the grounds set out therein touch on issues of law and which position therefore dispels the arguments brought forth by the respondent.

8. Onto the merits of the instant motion, the order sought is for a stay of execution of the decree pending appeal, for which the guiding provision is order 42, rule 6(2) of the Civil Procedure Rules and which sets out the conditions to be satisfied for such an order to be granted.

9. The first condition is that the application must have been brought without unreasonable delay. The applicant on the one hand is of the view that the motion has been brought within reasonable timelines. The respondent did not address me on this condition.

10. Suffice it to say that going by the averments made by the parties, it is apparent that the impugned judgment was delivered on August 25, 2022 whereas the motion was brought less than one (1) month later. In my view, the motion has been brought within a reasonable time.

11. The second condition touches on substantial loss to be suffered by an applicant.

12. The applicant on its part states that unless an order for a stay of execution is granted, the respondent will proceed to execute the decree, thereby causing him to suffer irreparable loss, thereby rendering the appeal nugatory.

13. Advocate Chebet further conveyed the applicant’s apprehension that if the decretal amount is paid to the respondent, the likelihood of recovering the amount from the respondent should the appeal succeed is slim.

14. On his part, the respondent is of the view that he is capable of refunding the decretal sum if called upon to do so since he supplies eggs to various hotels, and that the motion is an attempt at denying him the fruits of his judgment.

15. It is the ordinary course of principle for a successful party to be granted the privilege of enjoying the fruits of his or her judgment.

16. That notwithstanding, the question on who has the burden of proof on the issue of refund of the decretal sum was discussed by the Court of Appeal in the case of National Industrial Credit Bank Ltd v Aquinas Francis Wasike & another [2006] eKLR thus:“Once an applicant expresses a reasonable fear that 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 absence of anything to ascertain the respondent’s financial capacity to refund the decretal sum, I am satisfied that the applicant has reasonably demonstrated the manner in which it stands to suffer substantial loss if the order for a stay of execution is not granted.

18. Under the final condition which is the provision of security for the due performance of the decree or order, the applicant states that he is ready and willing to comply with the conditions which will be set by this court. In retort, the respondent proposes that the decretal sum be deposited in court.

19. Upon my consideration of the foregoing and upon further noting that the decretal sum in question is not colossal in nature, I find the proposal by the respondent to be reasonable in the circumstances.

20. In the end therefore, the notice of motion dated September 22, 2022 is found to be meritorious and hence it is allowed on the following terms:i.There shall be an order for a stay of execution of the judgment and decree issued by the Small Claims Court in Nairobi SCCCOM No 824 of 2021 on August 25, 2022 pending the hearing and determination of the intended appeal on the condition that the applicant deposits the entire decretal sum in court within 30 days from today, in default of which the stay order shall automatically lapse.ii.Costs of the motion shall abide the outcome of the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 2ND DAY OF DECEMBER, 2022. ………….…………….J K SERGONJUDGEIn the presence of:……………………………. for the appellant/applicant……………………………. for the respondent