[2017] KEHC 9184 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYAAT NAIROBI

MILIMANI CIVIL DIVISION

CIVIL APPEAL NO. 238 OF 2016

MATHIU JOSEPH.......................................................1ST APPELLANT

DENNIS MUGENDI MUGAMBI.................................2ND APPELLANT

VERSUS

TITUS CHARLES MWALILI...........................................RESPONDENT

RULING

1. The Appellants have moved this Honourable Court by way of a Notice of Motion dated 13th May, 2016 under Order 42 Rule 6, Order 51 of the Civil Procedure Rules, and Sections 1A, 3A and 65 of the Civil Procedure Act and all enabling provisions of the law seeking the following orders: -

(a)…spent;

(b) That there be stay of execution of the judgment and/or decree in Milimani CMCC No. 2933 of 2014 pending the hearing and determination of this application;

(c) That there be stay of execution of the judgment and/or decree in Milimani CMCC No. 2933 of 2014 pending the hearing and determination of the Appeal filed herein;

(d) Costs of the application be in the cause.

2. The Motion is premised on the grounds on the body of the application and the Supporting Affidavit of Jackline Ndirangu the Chief Legal Officer of Fidelity Shield Insurance Company Limited. The judgment being appealed against was delivered on 7th April, 2016 and the Applicants submit that the decretal amount of Kshs. 3, 976,062 in special and general damages is a substantial amount of money which the Respondent will not be able to refund in case the Appeal succeeds. The Respondent filed a Replying Affidavit dated 2nd June, 2016 opposing the application and averred that the award of special and general damages of Kshs. 1,216,062 and Kshs. 1,000,000 respectively which appear not to be contested be released to him and that the balance be deposited in Court awaiting the outcome of the Appeal.

3. I have read the Affidavits of the opposing parties, the written submissions and the authorities before this Court. Prompted by the Respondent’s submissions on the request for some funds to be released to him, I have perused the Appeal and I find that the appeal is on both liability and quantum. That said, I will not dwell on the merits or demerits of the Appeal as that is not the purpose of the Court at this stage.

4. The Court of Appeal in Housing Finance Company of Kenya v Sharok Kher Mohamed Ali Hirji & another [2015] eKLR outlined the guidelines to a Court hearing an application for stay of execution where it 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.”

5. Order 42 Rule 6 of the Civil Procedure Rules outlines 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.

6. What constitutes unreasonable delay varies from the circumstances of each case. The applicants submit that they moved with speed to pursue the appeal. The judgment was delivered on 7th April, 2016, the Appeal was filed on 6th May, 2016 while the instant application was filed on 13th May, 2016. On this, it is the Respondents submissions, that the application was brought after the lapse of 30 days and the sole intention is to deny and delay the Respondent from enjoying the fruits of a lawful judgment. The question of unreasonable delay was dwelt with in the case of Jaber Mohsen Ali & another v Priscillah Boit& another E&L 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 E&LC 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.”

7. Even though this application cannot be said to have been timely, the Court finds that it was not filed with unreasonable delay.

8. On substantial loss, the Appellant has stated that the Respondent may not be able to refund the decretal amount in the likely event that the intended appeal is successful. The Appellant further submits that if the sum of Kshs. 3,796,062 is paid to the Respondent who is not in any gainful employment, he will not be in a position to reimburse the same should the appeal succeed. The Respondent further submits that the Appellants have not established that substantial loss will occur unless stay of execution is made and relies on the case of Machira t/a Machira & Co. Advocates Vs. Esat Africa Standard (No 2) (2002) KLR 63,

9. I find that the Appellants have a reasonable fear that if the money is paid and the appeal is successful, the Respondent will not be able to repay as he is unemployed and has no known means of restitution having testified that he can no longer work as a tour driver as averred in the Supporting Affidavit. The Respondent has not contested this allegation neither has he demonstrated that he is able and willing to repay the decretal amount in case the appeal succeeds. In relation to money decree as the one in question herein, this Court in the case of Kenya Hotel Properties Limited v Willesden Properties Limited Civil Application Nai. No. 322 of 2006 (UR 178/06) stated that, “The decree is a money decree and normally the courts have felt that the success of the appeal would not be rendered nugatory if the decree is a money decree so long as the court ascertains that the respondent is not a “man of straw” but is a person who, on the success of the appeal, would be able to repay the decretal amount plus any interest to the applicant. However, with time, it became necessary to put certain riders to that legal position as it became obvious that in certain cases, undue hardship would be caused to the applicants if stay is refused purely on grounds that the decree is a money decree”.

10. I find that the Respondent has not demonstrated to this Court that he is not a man of straw in the sense that he will be able to reimburse the decretal amount in case the appeal herein is successful.

11. Further the Respondent has not demonstrated to this court that he is financially capable and willing to reimburse the Applicant the decretal amount or a portion of it should the Appeal succeed.

12. The Appellant has offered an insurance bond as security or to furnish security in any terms as this Court may order. This Court may not be able to grant the Respondent a prayer of releasing sum monies since liability is also denied, however, in so balancing the interest of the parties herein, I grant a stay of execution pending the hearing and determination of the Appeal filed herein on condition that the Appellants, do within 30 days of this ruling deposit the whole of the decretal amount in a joint interest earning account to be opened by counsels for both parties failure of which the stay lapses. The costs of the application shall abide the outcome of the Appeal.

It is so ordered.

Dated, signed and delivered at Nairobi this 14TH day of July, 2017.

……………….

L. NJUGUNA

JUDGE

In the presence of

……………………….… for the 1st Appellant.

………………………… for the 2nd Appellant.

……………………....... For the Respondent.