[2022] KEHC 11702 (KLR)

Makumi v Nthiwa (Civil Appeal E139 of 2021) [2022] KEHC 11702 (KLR) (14 July 2022) (Ruling)

Neutral citation: [2022] KEHC 11702 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal E139 of 2021

MW Muigai, J

July 14, 2022

Between

David Karomo Makumi

Applicant

and

Thomas Mawili Nthiwa

Respondent

(Being an application for stay of execution of the judgement and or decree issued by Honorable Magistrate R Gitau (Ms) Resident Magistrate on July 27, 2021. )

Ruling

1. In the notice of motion application dated September 13, 2021, the applicant sought the following orders from the court.a.Spentb.Spentc.Spentd.That this Hon court be pleased to grant stay of execution of the judgement and or decree issued by Honorable Magistrate R Gitau (Ms) Resident Magistrate on 27th July pending the hearing and determination of the appeal in Machakos HCCA 139 of 2021. e.That this Hon court allow the applicant to furnish the court with security in the form of a bank guarantee from the DTB Bank.f.Spent .g.That the costs of this application abide the outcome of the appeal.h.That this Hon court be pleased to issue any order and or direction it deems fit to grant in the circumstances.

2. The application is supported by the affidavit of David Karomo Mukami deposed on September 13, 2021 in which he deposed that he is the owner of motor vehicle registration number KCF 141X and is aggrieved by the judgement entered against him on July 27, 2021; where he was found 100% liable and ordered to pay the respondent Kshs 400,000 for general damages, Kshs 2050 for special damages together with costs and interest.

3. The appellant/applicant contends that he filed a memorandum of appeal and the appeal has high chances of success as the respondent did not prove liability against him nor does the respondent deserve the quantum awarded.

4. Further that the respondent may levy execution against him rendering the appeal nugatory and will cause irreparable loss and damage upon them.

5. The applicant deponed that if the decretal sum is paid to the respondent, he would not be in a position to refund the same if the appeal is successful. In addition, the respondent has not disclosed nor furnished the court with documentary evidence of proof of his financial standing.

6. The applicant opines that his insurer Directline Assurance Company limited is ready, willing and able to furnish the court with a bank guarantee from DTB Bank as security to the court. The application he deposes, is made in good faith and will not occasion prejudice to the respondent.

Replying Affidavit 7. The respondent filed a replying affidavit sworn on September 20, 2021 in which he deposed that the appeal is meant to delay him from enjoying the fruits of the judgment and no prejudice will be suffered by the applicant of the orders sought are not granted.

8. He contends that the appeal has little chances of success and that the accident is not in dispute. It was deposed that should the court be inclined to grant the orders then the applicant should be ordered to pay him half the decretal sum as liability is not in dispute.

9. The application was disposed of by way of written submissions.

Applicant Submissions 10. The applicant filed submissions dated November 22, 2021 in which he opined while relying on order 42 rule 6 of the Civil Procedure Rules that he had satisfied all the conditions therein. Firstly, he submitted that the application had been brought without unreasonable delay as judgment was delivered on July 27, 2021 and the application was filed on September 13, 2021.

11. Secondly, he submits that the appeal has high chances of success and substantial loss will occur as the respondent’s means are unknown and it is highly unlikely that the respondent will be able to refund the decretal amount in the event the appellant’s appeal succeeds since the respondent has not disclosed nor furnished the court with any documentary evidence to prove his financial standing he opines that the replying affidavit has only opposed the application and indicated that the appeal is meant to delay him from enjoying the fruits of the judgement, that he has not filed an affidavit of means. Reliance was placed on the case of Edward Kamau & another v Hannah Mukui Gichuki & another [2015] eKLR, Recoda Freight & Logistic Limited v Elishana Angote Okeyo [2015] eKLR.

12. He contends that the memorandum of appeal raises triable issues as it states that the learned magistrate erred in law and fact in awarding damages that were excessive in the circumstances. Reliance was placed on the case of Kenya Revenue Authority v Sidney Keitany Changole & 3 others [2015] eKLR.

13. Lastly, he indicates that he is willing to furnish the security in the form of an open bank guarantee from a well-known functioning bank that will be used once the appeal is concluded.

Respondent Submissions 14. The respondent filed submissions on February 21, 2022 wherein he relied on his replying affidavit and further submitted that if the court deems it just to grant the orders sought then as per order 42 rule 6 (2) (b) of the Civil Procedure Rules, it should order deposit of the decretal sum in a joint account pending the hearing of the appeal as observed in Civil Appeal No 275 of 2010.

15. He submits that he is a person of means and the only way of showing or establishing substantial loss by the applicant is by showing or establishing substantial loss by the applicant is by showing that the respondent would not be in a position to reimburse the decretal sum and in this case no such allegation has been made. He invites the court to dismiss the application.

Determination 16. I have considered the application, the replying affidavit and the submissions thereto and find the issue for determination is whether the applicant is entitled to orders of stay pending appeal.

17. First and foremost, we need to establish whether what we seek to stay is properly before the court. The judgement being appealed against was delivered on July 27, 2021, the memorandum of appeal was filed on August 16, 2021. The appeal seems to have been filed out of time and there is no indication that leave was sought for the same.

18. On the issue of stay, order 42 rule 6(1) and (2) of the Civil Procedure Rules, 2010 provides as follows:“(1) No appeal or second appeal shall operate as a stay of execution or proceeding under a decree or order appealed from except in so far as the Court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.(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.”

19. The first issue is whether the application has been filed without unreasonable delay. I note that the judgement sought to the appealed was delivered on July 27, 2021 whereas the application for stay was filed on September 13, 2021, about one and a half months later. I find this not to be ordinately delayed.

20. Secondly, the applicant has stated that she stands to suffer loss if the orders sought are not grated but has not demonstrated how exactly it will suffer. Substantial loss was discussed in the case of James Wangalwa & another v Agnes Naliaka Cheseto [2012] eKLR, as:“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 ... the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”

21. Similarly in the case of James Wangalwa & another v Agnes Naliaka Cheseto [2012] eKLR, it was observed 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 ... the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”

22. On the ability of the respondent financial incapability of paying back the decretal sum being one of the reasons the orders should be granted, I beg to differ. The onus of proving the respondent’s inability goes beyond throwing an allegation without evidence. It is upon the applicant who alleges the same to go ahead and prove it. Nonetheless, the court has settled this matter and stated that this should not be the reason an order of stay is granted. This was held in Stephen Wanjohi v Central Glass Industries Ltd Nairobi HCCC No 6726 of 1991, financial ability of a decree holder solely is not a reason for allowing stay; it is enough that the decree holder is not a dishonorable miscreant without any form of income.

23. On the issue of security, the applicant indicates that he is ready to comply with the orders of the court. Furnishing of security is key in getting orders of stay pending appeal. The Applicant has indicated that his insurer is willing to deposit security on his behalf in the form of a bank guarantee. The respondent on the other hand indicates that he is being denied from enjoying the fruits of the judgement the court has a duty to balance the rights of both parties. The bank guarantee between DTB bank and the applicant’s insurance company, Directline Assurance Company Limited is for a period of 12 months from November 2020, the same has since expired and there is no guarantee that the interests of the respondents will be catered for.

24. In Machira T/A Machira & Co Advocates v East African Standard (No 2)[2002] 1 KLR 63 it was held that:“to be obsessed with the protection of an appellant or intending appellant in total disregard or flitting mention of the so far successful opposite party is to flirt with one party as crocodile tears are shed for the other, contrary to sound principle for the exercise of a judicial discretion. The ordinary principle is that a successful party is entitled to the fruits of his judgement or of any decision of the court giving him success at any stage. That is trite knowledge and is one of the fundamental procedural values which is acknowledged and normally must be put into effect by the way applications for stay of further proceedings or execution, pending appeal are handled. In the application of that ordinary principle, the court must have its sight firmly fixed on upholding the overriding objective of the rules of procedure for handling civil cases in courts, which is to do justice in accordance with the law and to prevent abuse of the process of the court”.

25. The decretal amount in this case is Kshs 402,050 being general and special damages. The respondent contends that the accident and liability is not in dispute and this has not been rebutted by the applicant.

Disposition 1. In the circumstances, I hereby grant stay pending the hearing and determination of the appeal on condition that the applicant pay the respondent half the decretal sum within 90 days and;

2. Deposit the other half in a joint interest earning account in the name of both advocates within 90 days failure to which the order of stay lapses.

It is so ordered.

DELIVERED SIGNED & DATED IN OPEN COURT IN MACHAKOS ON 14TH JULY 2022 (VIRTUAL CONFERENCE).MW MUIGAIJUDGE