[2017] KEHC 2489 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL SUIT NO. 131 OF 2002

LAWI KIPLAGAT..............................................JUDGMENT DEBTOR/APPLICANT

VERSUS

NATIONAL HOUSING CORPORATION..........DECREE HOLDER/RESPONDENT

RULING

The Judgment Debtor, Applicant filed a Notice of Motion Application dated 30th March, 2017 seeking orders that the Honourable Court be pleased to stay execution of the ruling delivered on the 9th March, 2017 together with all consequential orders pending the hearing and determination of this Application and the intended Appeal to the Court of Appeal.

The Motion is premised on the grounds on the body of the application and the Supporting and Further Affidavits of Lawi Kiplagat. The grounds advanced in support of the application are that the Applicant has already filed a Notice of Appeal and a letter requesting for the proceedings. That unless the stay is granted, the Appeal shall be rendered nugatory. That the Applicant is willing to comply with such reasonable conditions as to security as the Court may deem necessary. That the stay is necessary as the Decree Holder/Respondent is likely to effectuate the order as issued and proceed to attach and dispose of the subject property.

The Respondent filed grounds of Opposition dated 20th April, 2017 and a Replying Affidavit of even date sworn by Kennedy K. Munala, the Legal Officer of the Respondent. The application is opposed on the grounds that is brought under the wrong provisions of the law being Order 22 Rule 22(1) of the Civil Procedure Rules, 2010. That the Applicant has not demonstrated how he will suffer substantial loss if the order is not made. That the Applicant has not offered any security for the decretal sum and costs which stand at Kshs. 43,473,061. 02 out of which the Respondent has recovered ksh.6,515,463 only. The Respondent further avers that the Applicant has not shown that the sums due are not owing and since the judgment was issued on 8th July, 2002, the Applicant has never appealed against the same. The Respondent further avers that the appeal cannot be said to be arguable when part of the decree has been satisfied.

The Application was canvassed by way of written submissions. The Applicant filed his Submissions dated 5th June, 2017 and submitted that the subject property is used by him as a source of livelihood. Whilst acknowledging that the application was brought under the wrong provisions of the law, the Applicant submitted that the same should be considered substantively and not on procedural technicalities. The applicant refers to article 159 (2) (d) of the Constitution which provides that justice should be rendered without undue regard to procedural technicalities.

The Respondent filed its submissions dated 15th June, 2017 and submitted that there is no order barring them from executing the decree issued in the year 2002 and indeed the Applicant has not demonstrated the substantial loss he will suffer since he is already indebted to the Respondents.

I have considered the Affidavits filed herein, the written submissions and the authorities relied on. It is a matter of fact that the application was brought under the wrong provisions of law. Order 22 rule 22 applies in instances where an application for execution has been sent to another court rather than the one that passed the decree which is not the case herein. That notwithstanding, in light of Article 159 of the constitution, I will not dismiss the application on this technicality but will consider its substance.

That said, Order 42 Rule 6 of the Civil Procedure Rules provides the conditions for granting an order of stay of execution which are;

(a) That the application has been made without unreasonable delay;

(b) That security for costs has been given; and

(c) That substantial loss may result to the Applicant unless the order for stay is made.

The said requirements were outlined by the Court of Appeal in the case of Housing Finance Company of Kenya v Sharok Kher Mohamed Ali Hirji & another [2015] eKLRwhere the Court held that, “We cannot over emphasize that at this stage we are not required to go to the merits of the case as tempting as it may be or consider whether the issues will be successful in favour of the appellant, lest we embarrass the trial judge. We therefore find that the applicant has discharged this requirement on the balance of probabilities. We are further guided by this court’s decision in CARTER & SONS LTD. V. DEPOSIT PROTECTION FUND BOARD & TWO OTHERS – Civil Appeal No. 291 of 1997, at Page 4 as follows:

“ . . . the mere fact that there are strong grounds of appeal would not, in itself, justify an order for stay. . .the applicant must establish a sufficient cause; secondly the court must be satisfied that substantial loss would ensue from a refusal to grant a stay; and thirdly the applicant must furnish security, and the application must, of course, be made without unreasonable delay.”

What constitutes unreasonable delay varies from the circumstances of each case. The instant application was filed on 30th March, 2017 whereas the Ruling sought to be stayed was delivered on 9th March, 2017. The question of unreasonable delay was dwelt with in the case of JaberMohsen Ali & another v Priscillah Boit & another ELC NO. 200 OF 2012[2014] eKLRwhere it was stated:

“The question that arises is whether this application has been filed after unreasonable delay. What is unreasonable delay is dependent on the surrounding circumstances of each case. Even one day after judgment could be unreasonable delay depending on the judgment of the court and any order given thereafter. In the case of Christopher Kendagor v Christopher Kipkorir, Eldoret ELC 919 of 2012 the applicant had been given 14 days to vacate the suit land. He filed an application one day after the 14 days. The application was denied, the court holding that, the application ought to have come before expiry of the period given to vacate the land.”

Even though this application cannot be said to have been timeously filed, the Court finds that there was no unreasonable delay.

On substantial loss, the Applicant, in his Supporting Affidavit states that the stay is necessary as the Respondent is likely to effectuate the order issued and proceed to attach and dispose the subject property. The facts surrounding this case are peculiar in that a judgment was issued in the year 2002 which was not appealed against and in fact the Decree Holder has partially executed the same. The Applicant/Judgment Debtor has not contested this fact, however, he contends that he will suffer loss if the execution proceeds and the subject property is attached. The Applicant has not illustrated how he will settle the decree but rather, seeks to have the execution stayed. . The courts have on several occasions held that the fact that the process of execution has started or is likely to be initiated does not amount to substantial loss. The Respondent is rightfully entitled to execute the decree and execution is in itself a lawful process of which the Respondent is entitled to.

The Respondent herein has a decree which is partially executed and submits that the Applicant herein has transferred his moveable properties to third parties and or hidden the same and that the subject property is the only ascertainable property which the Respondent can attach and recover the decree or part of it. This being the case I am forced to consider the interests of both parties to ensure that applicant is not denied his opportunity to ventilate his appeal, while at the same time, the Respondent is not denied the fruit of the judgment. In balancing the interests of both parties and in the interest of justice, I do grant a stay of execution on condition that the Applicant do provide a bank guarantee of 12 million within 45 days from today failing which, the stay order shall lapse.

It is so ordered.

Dated, Signed and Delivered at Nairobi this 3rdDay of November, 2017.

……………...

L. NJUGUNA

JUDGE

In the Presence of

……………………... for the Decree Holder/Respondent

……………………... for the Judgment Debtor/Applicant