[2022] KEHC 15364 (KLR)

Masengeli & another v Wanangiti & 4 others (Civil Appeal E192 of 2022) [2022] KEHC 15364 (KLR) (Civ) (11 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15364 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E192 of 2022

JK Sergon, J

November 11, 2022

Between

Herbert Masengeli

1st Appellant

Edward Githae Wanjau

2nd Appellant

and

Emily Anne Wanangiti

1st Respondent

Kenya Railways Corporation

2nd Respondent

Rift Valley Railways Corporation

3rd Respondent

Attorney General

4th Respondent

Kenya National Highways Authority

5th Respondent

Ruling

1. The appellants brought the Notice of Motion dated 1st July, 2022 supported by the grounds presented on its face and the facts stated in the affidavit of advocate Pauline Waruhiu. The appellants sought for an order for stay of the ruling, judgment, decree, execution order arising from Milimani CMCC no 7140 of 2016 pending the hearing and determination of this appeal.

2. The 1st respondent put in a replying affidavit sworn by 1st respondent Emily Anne Wanangiti on 29th July, 2022, to oppose the Motion.

3. The appellants rejoined with the further affidavit of advocate Herbert Masengeli sworn on 7th September, 2022.

4. The 1st respondent similarly filed a notice of preliminary objection dated 29th July, 2022 and raised the ground that the instant Motion is Res Judicata. The appellants responded to the preliminary objection by filing the grounds of opposition dated on 6th September, 2022.

5. When the parties attended court, directions were given that the preliminary objection and the instant Motion be heard and determined together.

6. A brief background of the matter is that the 1st respondent instituted a suit against the applicants vide the plaint dated 10th October, 2016 and sought for general and special damages arising out of the a motor vehicle accident

7. Upon hearing the parties, this court through the judgment delivered on 22nd January, 2021 awarded the respondent an aggregate sum of Kshs 3,870,000 plus costs of the suit and interest thereon. Being aggrieved by the aforementioned decision, the applicant indicated his intention to challenge it on appeal.

8. I will first make a determination on the preliminary objection which is premised on the argument that the Motion is res judicata.

9. In reply thereto, the applicants stated that the preliminary objection is an abuse of the court process since it does not raise any points of law. The deponents further stated that the instant Motion is not res judicata since the prayers sought therein are distinct from those sought in the Misc application No120/2021 which was for leave to appeal out of time as well as stay of proceedings and orders of stay of any ruling, judgment, decree, orders in Civil Suit No 7140 of 2016 pending the appeal.

10. In its grounds of opposition, the applicant argues that the Miscellaneous application No 120/2021 which sought similar prayers as those now sought in the instant Motion was heard and determined on 24th March, 2022 wherein the court proceeded to direct that status quo be maintained for 14 days to allow the filing of the appeal .

11. Reference is made to the case of Mukisa Biscuit Company v West End Distributors Limited [1969] EA 696 cited in the submissions by the respondent, where the court defined the term ‘preliminary objection’ in the following manner:“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised in any fact that has to be ascertained or if what is sought is the exercise of judicial discretion.”

12. The Court of Appeal in the case of Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR offered the following interpretation on the legal term ‘res judicata’ in the manner hereunder:“Res judicata is a matter properly to be addressed in limine as it does possess jurisdictional consequence because it constitutes a statutory peremptory preclusion of a certain category of suits. That much is clear from section 7 of the Civil Procedure Act, 2010;“No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of the claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”Thus, for the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must all be satisfied, as they are rendered not in disjunctive, but conjunctive terms;(a)The suit or issue was directly and substantially in issue in the former suit.(b)That former suit was between the same parties or parties under whom they or any of them claim.(c)Those parties were litigating under the same title.(d)The issue was heard and finally determined in the former suit.(e)The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.”

13. Upon my study of the instant Motion, I observed that the same is essentially seeking an order for a stay of execution and proceedings, similar to the order sought in the application dated 12th March, 2021.

14. Upon my perusal of the record, I note that the appellant by way of the ruling delivered on 24th March, 2022 granted the appellant a conditional stay of proceedings for a period of 14 days to maintain the status quo existing as of then in the lower suit to enable them to file the appeal out of time.

15. Be that as it may, the provisions of order 42, rule 6(2) of the Civil Procedure Rules, 2010 express that even where an application for a stay of execution or proceedings is denied or granted by the trial court, the court sitting on appeal is at liberty to consider a similar application and to make such orders as it deems just.

16. In view of the foregoing, I am satisfied that there is nothing to preclude me from entertaining the instant Motion notwithstanding the fact that a similar application had previously been filed before this court. Consequently, the preliminary objection dated 29th July, 2022 is hereby dismissed with costs to the appellant.

17. The principles guiding the grant of an application for stay of execution pending appeal are well settled. These principles are provided under order 42 rule 6(2) of the Civil Procedure Rules which provides as follows: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.

18. Under the first condition touching on length of delay, while it is apparent from the record that no copy of the impugned ruling was availed to this court, the parties are in agreement that the impugned ruling was delivered on 24th March, 2022 which is close to three (3) months prior to the filing of the Motion. In my mind, while there has clearly been a delay in filing the Motion, I do not find the delay to be inordinate.

19. The second condition touches on substantial loss to be suffered by the applicant.

20. The applicants on their part is apprehensive that if the respondent is in process of extracting the decree and therefore in danger of imminent execution against the applicants’ property which shall lead in the applicant’s suffering undue substantial loss if stay is not granted.

21. On the other hand, the respondent avers that in the event that this court grants stay of execution, he then prays that the applicant be compelled to pay him at least half portion of the decretal sum while the rest is deposited in an interest earning account.

22. 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 when it held that:“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…”

23. In the absence of anything to ascertain the respondent’s financial capacity to refund the decretal sum, I am satisfied that the applicants have reasonably demonstrated that it will stand to suffer substantial loss if the order for a stay of execution is not granted.

24. Under the final condition which is the provision of security for the due performance of the decree or order, the applicant states that it is ready and willing to give security for the due performance of the decree herein in form of a bank guarantee as shall be directed by the court.

25. On the other hand, the respondents aver that the bank guarantee the applicants are proposing as security is not suitable security as it is the bank guarantee can only be issued for a definite period of time while the completion of the appeal has an indefinite time frame.

26. In making an order for the provision of security, this court must balance the interest of the parties. In the present instance, it is noteworthy that the respondent has not shown any pressing need that would require payment of part of the decretal amount to him at this stage.

27. In the end therefore, the Motion dated 1st July, 2022 is found to be meritorious and hence it is allowed in terms of the following orders:i.There shall be an order for stay of execution of the ruling, judgment and decree issued on 22nd January, 2021 pending the hearing and determination of this appeal on the condition that the applicants deposit the half the decretal sum in an interest earning account in the joint names of the advocates or firms of advocates within 45 days from the date of this ruling. In default of which the stay order shall lapse.ii.Costs of the Motion shall abide the outcome of the appeal.

Dated, signed and delivered online via Microsoft Teams at Nairobi this 11th day of November, 2022. .........................................J. K. SERGONJUDGEIn the presence of:……………………………. for the Appellant……………………………. for the Respondent