[2022] KEHC 14267 (KLR)

Macharia v Mutua (Civil Appeal E013 of 2022) [2022] KEHC 14267 (KLR) (6 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14267 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal E013 of 2022

OA Sewe, J

October 6, 2022

Between

Thiga David Macharia

Applicant

and

Julita Kalunde Mutua

Respondent

Ruling

1. This ruling is in respect of the Notice of Motion dated 16th February 2022. It was filed by the appellant under Sections 3 and 3A of the Civil Procedure Act, Chapter 21 of the Laws of Kenya as well as Order 22 Rule 22, Order 42 Rules 4 and 6 and Order 51 Rules 1 and 3 of the Civil Procedure Rules, 2010. As prayers 1, 2 and 4 of the application are spent, the outstanding prayers are prayers 3 and 5 by which the appellant seeks that:(a)the Court be pleased to stay execution of the judgment and Decree obtained against him by the respondent pending the hearing and determination of this appeal;(b)The costs of the application do abide the outcome of the appeal.

2. The application was supported by the affidavit of Kelvin Ngure, the Deputy Claims Manager of Directline Assurance Company, in which he averred that their company is the insurer of motor vehicle registration number KAU 919N; and that judgment was, on 20th January 2022 entered against the appellant in favour of the respondent in the sum of Kshs. 200,000/= in respect of a road traffic accident involving the said motor vehicle. Mr. Ngure annexed a copy of the judgment delivered in Mombasa CMCC No. 844 of 2009: Julita Kalunde Mutua v Thiga David Macharia & 2 Others, as Annexure KN 1 to his affidavit and averred that, being dissatisfied with the judgment, the insurance company has appealed that decision in the instant appeal. Consequently, Mr. Ngure averred that he believes that the appeal has good chances of success; and therefore that the appellant stands to suffer substantial damages unless stay is granted. He added, at paragraph 11 of his affidavit that Directline Assurance Company Limited is ready and willing to furnish security in the form of a Bank Guarantee. He annexed a copy of the facility letter in that connection to the Supporting Affidavit.

3. The application was opposed by the respondent and a Replying Affidavit filed in that regard, sworn by Kioko Maundu, Advocate. He averred that from his conduct of the matter, he could vouch for the fact that Kelvin Ngure could only furnish a complementary affidavit to that of the appellant as Directline Assurance Co. Ltd is not a party to the subject proceedings. He posited therefore that the appeal is only meant to delay the enjoyment of the fruits of the judgment by the respondent, since the appellant never called any evidence at the trial and never bothered to take out directions on 3rd Party Proceedings during the trial before the lower court.

4. Mr. Maundu further averred that the amount awarded can be easily repaid should the appeal succeed, as she works as a Lab Technician with the County Government of Kwale. Counsel further impugned the security offered by the appellant on several fronts; including the fact that it was valid only until 1st September 2022. He therefore urged for the dismissal of the application.

5. Having given careful thought to the application and the averments set out in the parties’ respective affidavits, the single issue that arises for determination is whether sufficient cause has been made by the appellant for the grant of stay of execution of the decree issued in Mombasa CMCC No. 844 of 2009 pending hearing and determination of the Appeal herein. There is no dispute that the subordinate court entered judgment in the respondent’s favour on the 20th January, 2022 in the sum of Kshs. 200,000/= plus interest and costs. There is likewise no dispute that an appeal has been filed from that judgment and its ensuing decree.

6. Stay of Execution is provided for under Order 42 Rule 6 of the Civil Procedure Rules, 2010 which states that: -(2)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”.

7. It is clear therefore that, for the Court to grant stay of execution pending appeal, the court must be convinced that the applicant will suffer substantial loss; that the application has been brought without undue delay and the willingness to comply with an order of payment of security as may be imposed by court. In this instance, the appeal was filed on 31st January 2022; while the instant application was filed on 17th February 2022. I do not find that unreasonable considering that the appellant had 30 days from 20th January 2022 within which to lodge his appeal.

8. On substantial loss, the appellant is apprehensive that if stay is not granted the respondent may proceed to levy execution against him, thus rendering the appeal nugatory. The appellant further contended that the respondent will be unable to pay back the decretal sum as there is no proof that she is financially capable. It is now settled that execution is not a reason enough for the court to grant a stay of execution for the reason that a successful litigant has a right to enjoy the fruits of his or her judgment. In case of James Wangalwa & Another v Agnes Naliaka Cheselo[2012] eKLR, for instance, it was held 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. This is what substantial loss would entail, a question that was aptly discussed in the case of Silvester –vs- Chesoni [2002] 1 KLR 887, and also in the case of Mukuma –vs- Abwoga quoted above. The last case, referring to the exercise of discretion by the High Court and the court of Appeal in the granting stay of execution, under Order 42 of the CPR and Rule S (2)(b) of the court by Appeal Rules respectively emphasized the centrality of substantial loss thus: -“…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss of what has to be prevented by preserving the status quo because such loss would render the appeal nugatory?

9. Although the Respondent has maintained that she is able to repay the decretal sum as she works as a Lab Technician with the Kwale County Government- Taru Dispensary, there appears to be no tangible proof in that regard aside from the respondent’s averment at paragraph 9 of her affidavit. The Court of Appeal in the case of National Industrial Credit Bank Ltd v Aquinas Francis Wasike & another [2006] eKLR 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 the lack of them. 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 — see for example section 112 of the Evidence Act, Chapter 80 Laws of Kenya…”

10. On the third condition of security, the applicant has offered a bank guarantee. By way of evidence, the appellant relied on an Offer Letter dated 21st August 2021 issued by Family Bank to Directline Assurance Company Limited for Bank Guarantee facilities with a limit of Kshs. 50 million. The facility was valid for a period of 12 months with effect from 31st August 2021. It is therefore not a guarantee tailored for this particular matter; served the purpose of demonstrating that should the Court be inclined to accept the appellant’s proposal, then a suitable Bank Guarantee could be availed by the appellant’s insurers for purposes of this appeal.

11. It is therefore my find that the Applicant has complied and proved all the ingredients set under Order 42 Rule 6(2) the Civil Procedure Rules, 2010 and; since the facility letter for Bank Guarantee has since expired, the orders that commend themselves to me, and which I hereby grant are as follows:-(a)That the appellant’s Notice of Motion dated 16th February 2022 be and is hereby granted;(b)an order of stay of execution be and is hereby issued in respect of the judgment delivered against the appellant in Mombasa CMCC No. 844 of 2009 on 20th February 2022, pending the hearing and final determination of this appeal on condition that the applicant deposits the entire decretal sum in a joint interest earning account in the names of counsel for the parties within 30 days from the date hereof.(c)Costs of the application be costs in the appeal.It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 6TH DAY OF OCTOBER 2022OLGA SEWEJUDGE