[2022] KEHC 15788 (KLR)

Makoro v Molyn Credit Limited & 2 others (Civil Appeal E119 of 2022) [2022] KEHC 15788 (KLR) (Civ) (1 December 2022) (Ruling)

Neutral citation: [2022] KEHC 15788 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E119 of 2022

JN Mulwa, J

December 1, 2022

Between

Emmanuel Onyinkwa Makoro

Appellant

and

Molyn Credit Limited

1st Respondent

Thomas Nyabaro Ogero

2nd Respondent

Linet Achieng Okoth

3rd Respondent

Ruling

1. The genesis of the application before the court dated March 4, 2022 is as follows:"An interlocutory judgement was entered against the appellant in default of defence on the 12th of May 2021. The appellant proceeded to file an application to set aside the interlocutory judgment. The respondent filed a preliminary objection on the 18th of August 2021 urging for dismissal on grounds that the supporting affidavit had been deponed to by the appellant’s advocate. Upon hearing the application, the trial Magistrate dismissed the application by a ruling dated February 14, 2022 by upholding the preliminary objection."

2. The above events prompted the appellant to file the instant application seeking orders for stay of execution of the interlocutory judgment entered on the 12th of May 2021 in CMCC No. 9461 of 2018 pending the hearing and determination of the application, and the subsequent appeal.On the 11th of March 2018, interim stay orders were granted pending hearing and determination of the application.

3. The appellant swore the supporting affidavit in support of the application on the 4th of March 2022, and a supplementary affidavit on the 29th of September 2022. Grounds for the application are also stated at the face of the application.

4. In opposition to the application, one Moses Anyangu, a director of the 1st respondent swore the replying affidavit on the 27th of June 2022. In addition, both parties filed written submissions dated September 12, 2022 and September 29, 2022 respectively; which the court has considered.

5. The interlocutory judgement sought to be stayed was in default of a defence, the appellant having filed the Memorandum of Appearance on the 21st of December 2020. I have seen from the court record that there is indeed a statement of defence dated March 5, 2021. What is not clear is whether the said defence was duly filed within time that is on or before the 6th of January 2021, and if so, whether duly acknowledged by the Executive Officer. This may not be for my enquiry as there is an appeal pending. But, what is clear is that by the time the interlocutory judgment was endorsed, the primary suit had not been set down for hearing on formal proof; thus, no progression of the case as at that time.

6. The parameters for the grant of an order of stay of execution pending appeal are provided under Order 42 Rule 6(2) of the Civil Procedure Rules, 2010: -

7. The purpose for a stay order is to preserve the subject matter in dispute so that the rights of the appellant exercising his undoubted right of appeal are safeguarded and the appeal is not rendered nugatory, as held in the case RWW v EKW [2019] e KLR. In this instant case, what is the subject matter to be preserved?The case before the trial court as seen from the pleadings is a money claim of Kshs. 683,301/-.

8. It is a very rare occasion when a money decree can be rendered nugatory if a stay order is denied by a court, unless circumstances are laid bare to the court; which is not the case in the instant application.

9. Order 42 Rule 6 (2) provides: -(2)No order of stay of execution shall be made under sub-rule (1) unless: -a.The court is satisfied that substantial loss may result to the applicant unless the order is made and 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.

10. Substantial loss is the main concern for the court; even when a lawful decree has been executed, or is about to be executed, if the process is lawful. This is what ought to be considered as ably held in the case James Wangalwa v Agnes Naliaka Cheseto [2012] e KLR.

11. In addition, it is trite that to grant or not to grant orders of stay are at the court’s discretion, but the discretion is designated on the basis that none of the parties would suffer undue prejudice as a result, in recognition of both parties’ rights; it is a balancing act that ought to be exercised judiciously.

12. Order 42 recognizes that there is already a judgment and a decree, hence the purpose for security for the due performance of such decree or order.The above in my view is when there is no dispute as to the judgment sum meaning, a regular judgment upon a special damage claim.

13. Looking at the prayers stated in the plaint dated October 23, 2018, the prayer thereof cannot be said to be purely a special damage per se. It needs to be proved on a formal proof hearing, which had not taken place by the time this application was filed and an interim stay order of execution granted, and basically a stay of proceedings, pending determination of the appeal.

14. For the foregoing, I am satisfied that the applicant meets the threshold and parameters for grant of the orders sought.a.Consequently, an order of stay of execution of the interlocutory judgment entered on the 12th of May 2021 is hereby granted pending the hearing and determination of the appeal.b.Additionally, the appellant is directed to file the Record of Appeal within 60 days of this ruling.c.The matter shall be mentioned before the court on the 8th of February 2023 for a status report on the progression of the appeal.d.The costs of this application shall abide in the appeal.

Orders accordingly.Dated, Delivered and Signed this 1stday of December 2022. J. N. MULWAJUDGE