[2022] KEHC 209 (KLR)

Mbacho & another v Kamba (Civil Appeal E138 of 2021) [2022] KEHC 209 (KLR) (15 March 2022) (Ruling)

Neutral citation: [2022] KEHC 209 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal E138 of 2021

MW Muigai, J

March 15, 2022

Between

Samuel Mbacho

1st Appellant

Stephen Kimani Mungai

2nd Appellant

and

Christine Mwikali Kamba

Respondent

(Being an Appeal from the judgment delivered on 5th August, 2021 at the Chief Magistrate’s Court at Mavoko by Hon. B. Kasavuli (P.M))

Ruling

Notice of Motion Application 1. Vide Application dated the 3rd of September 2021 under Section 1A,1B and 3A of the Civil Procedure Act, Article 159 (2) (a) of the Constitution of Kenya, 2010 ,Order 21 Rule 1B, Order 22, Order 40 Rule 6, Order 51 of the Civil Procedure Rulesseeking the following orders, That;a.Spent.b.Spent.c.Spent.d.This Honourable Court be pleased to grant a stay of execution of the judgement and/or decree issued by Honorable B. Kasavuli on 5th of August 2021 pending full hearing and determination of this Appeal in Machakos HCCA 138 of 2021. e.This Honorable Court allow the Applicant to furnish the court with security in the form of a Bank guarantee from the DTB Bank.f.Spentg.the costs of this Application abide the outcome of the appealh.This Honorable Court be pleased to issue any other order and/or direction it deem fir to grant in the circumstances.

2. The Application is supported by the Affidavit of Samuel Mbacho sworn on 3rd of September 2021 in which he avers that he is the insured of Motor vehicle registration KBX 921Y and being aggrieved by the judgement that was entered against him on 5th August 2021, he filed an appeal that he believes has high chances of success and that the Respondent may levy distress against them rendering the appeal nugatory. He further averred that the Respondent would not be able to settle the decretal sum if the Appeal was successful and further that he had not shown any evidence of his financial standing. He contended that he was willing to furnish the court with a Bank Guarantee form DTB Bank.

Respondent’s Replying Affidavit 3. The Respondent filed a replying Affidavit dated 14th September 2021 in which she opposed the application and opined that the Applicant should deposit half the amount being Kshs 151,750/- plus costs and interest in a joint interest earning account and the other half be released to her. She opposed the bank guarantee as she contended that it is only valid for 12 months from 6th November 2020 by which time the Appeal will not have been concluded. She deposed that the Appeal did not raise any grounds and was fled to frustrate her efforts of reaping the fruits of the judgement.

Further Affidavit 4. The Applicant’s counsel swore a further affidavit dated 1st of October 2021 in which she opined that the bank guarantee from DTB bank was renewable annually and that the Appellants are ready and willing to provide security from Family Bank. Further that the application is made subject to Order 8 Rule 3(1 &2) of the Civil Procedure Rules and that no prejudice will be suffered if the application is allowed.

5. Directions were taken in 22nd of September 2021 that the application be canvassed by way of written submissions. The Appellants filed submissions on 28th November 2021 while the Respondent indicated that he would rely on her Replying Affidavit.

Appellants’ Submissions 6. The Appellants’ submitted on four grounds, as to whether the Appellants have an arguable appeal, Counsel submitted that it raises arguable points of law and fact that need the Court’s intervention. Reliance was placed on the case of Kenya Revenue Authority vs Sidney Keitany Changole & 3 Others [2015] eKLR. The court was asked to exercise its discretion in finding that there was an arguable appeal.

7. As to whether substantial loss will be suffered if the orders sought are not granted, the Appellant submitted that in the absence of an affidavit of means then it may be construed that the Respondent is not possessed of sufficient means and therefore not in a position to reimburse the decretal sum should be the Appeal succeed. Reference was made to the case of Edward Kamau & Another vs Hannah Mukui Gichuki & Another [2015] eKLR, National Industrial Credit Bank Limited vs Aquinas Francis Wasike, Court of Appeal CA 238/05 and Tabro Transporters Limited vs Absalom Dova Lumbasi [2012] eKLR.

8. As to whether the application was done without unreasonable delay, the Appellants submitted that judgment was delivered on 5th of August 2021 and this Application filed on 3rd of September well within the thirty (30) days initial stay of execution period therefore the Application was filed without unreasonable delay.

9. As regard the issue of security, while relying on the case of Selestial Limited vs Global Rock Development [2015] eKLR, they submitted that they are of little means but through their insurer, are willing to provide security in the form of a bank guarantee from DTB or Family Bank.

Analysis And Determination 10. Having considered all the Application, the affidavits in response and the submissions of the parties I find that the issue for determination is whether the Applicant is entitled to the orders sought.

11. Order 42 rule 6(2) of the Civil Procedure Rules,2010 provides that:“(2)No order for 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 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.

12. On the first condition, the court in Tropical Commodities Suppliers Ltd and Others vs. International Credit Bank Limited (in liquidation) (2004) E.A. LR 331,defined substantial loss in the sense of Order 42 rule 6 as follows:-“…Substantial loss does not represent any particular mathematical formula. Rather, it is a qualitative concept. It refers to any loss, great or small, that is of real worth or value as distinguished from a loss without value or a loss that is merely nominal…”

13. In Masisi Mwita vs. Damaris Wanjiku Njeri [2016] eKLR, Mativo J relied on the case of Equity Bank Ltd vs. Taiga Adams Company Ltd, [2006] eKLR to explain the onus of the Applicant where the court stated a follows: -“…The only way of showing or establishing substantial loss is by showing that if the decretal sum is paid to the respondent—that is execution is carried out-in the event the appeal succeeds, the respondent would not be in a position to pay-reimburse- as/he is a person of no means. Here, no such allegation is established by the appellant.”

14. However Odunga J. in George Kimotho Ilewe Annastacia Wanza Muthuka & Joseph Mutuku Ngewa (suing as legal representatives of the estate of Judy Kioo Wanza – deceased)stated that:-“It is not enough to simply speculate that the Respondent, a successful litigant would not be able to refund the decretal sum. As far as the Court is concerned, she is a successful litigant and is entitled to the sum decreed in her favour. Similarly, there is no allegation that the payment of the said sum would ruin the applicant’s business.” See in Bungoma High Court Misc Application No 42 of 2011 - James Wangalwa & Another vs. Agnes Naliaka Cheseto and James Wangalwa & Another vs. Agnes Naliaka Cheseto [2012] eKLR.

15. The Applicants have only indicated that the Respondent may levy execution against them causing irreparable loss and damage upon them. The Respondent has not in her reply given any indication of being able to pay back the decretal sum in the event the Appeal will succeed. On the other hand the court notes that the Appellants insurer has not demonstrated the substantial loss that it would suffer if the decretal mount is paid to the Respondent.

16. As regards the second ground of filing the Application within time, judgement was entered on 5th of August 2021 whereas this application was filed on 6th of September 2021. In my opinion, this application has been filed within reasonable time and therefore the second ground has been satisfied.

17. As to what constitutes an arguable appeal, the Court of Appeal in Nairobi Women’s Hospital vs. Purity Kemunto [2018] eKLR:-“To say that an appeal is arguable is another way of saying that it is not frivolous and that it raises a bona fide issue deserving full consideration by the Court. Even one bona fide issue will satisfy the requirement, for the law does not look for a multiplicity of arguable issues.”

18. Having perused the Memorandum of Appeal and without going into the merits, I find that the Appeal raises arguable issues that will be determined by the Appellate court.

19. As regards the issue of deposit of security, the Applicant has averred that he is willing to provide the court with a bank guarantee of Kshs.30,000,000. 00/- from DTB Bank and in the further affidavit deposed by their advocate indicated that they can also give a bank guarantee of Kshs.50,000,000. 00/ from family bank valid for 12 months with an option to renew.

20. The court in Focin Motorcycle Co. Limited vs. Ann Wambui Wangui & another [2018] eKLR, stated that:-“Where the applicant proposes to provide security as the Applicant has done, it is a mark of good faith that the application for stay is not just meant to deny the respondent the fruits of judgment. My view is that it is sufficient for the applicant to state that he is ready to provide security or to propose the kind of security but it is the discretion of the Court to determine the security. The Applicant has offered to provide security and has therefore satisfied this ground for stay.”

21. The Respondent submitted that the bank guarantee was only for 12months from 6th November 2020. From the record, the DTB Bank Guarantee at Clause 3, “its validity shall not exceed one (1) year from the date of issuance or until such time that the said guarantee is cancelled or becomes void whichever comes first and shall be renewed thereafter at our discretion” while the bank Guarantee from Family Bank indicates that it is only valid for 12months from 1st September 2021. at clause 2 it indicates “duration: 12months with an option to renew”

22. The court in Absalom Dova vs. Tarbo Transporters [2013] eKLR, stated:-“The discretionary relief of stay of execution pending appeal is designed on the basis that no one would be worse off by virtue of an order of the court; as such order does not introduce any disadvantage, but administers the justice that the case deserves. This is in recognition that both parties have rights; the Appellant to his appeal which includes the prospects that the appeal will not be rendered nugatory; and the decree holder to the decree which includes full benefits under the decree. The court in balancing the two competing rights focuses on their reconciliation…”

23. The Respondent requests for release of half of the amount being Kshs 151,750/- plus costs and interest in a joint interest earning account and the other half be released to her.

24. Before I pen off, I must issue a warning to the Counsel on record who swore an affidavit on behalf of her client as if she was a party to the suit. This court in Oriental Commercial Bank Ltd v Shreeji Contractors Ltd & 2 others [2021] eKLR observed that;“As a general rule, a lawyer who appears as advocate shall not testify or submit their own affidavit evidence before the tribunal unless they are specifically permitted by law or the Court to do so or unless the matter is purely formal or uncontroverted.27. In Magnolia PVT Limited vs Synermed Pharmaceuticals (K) Ltd (2018) eKLR, the Court dealing with similar issue states as follows:Whereas there is nothing barring an advocate from swearing an affidavit in appropriate cases, where the matters deposed to are agreed or on purely legal positions, advocates should refrain from the temptation of being the avenue through which disputed facts are proclaimed. The rationale for the said principle is to insulate the advocate, an officer of the court, from the vagaries of litigation which, on occasions may be very unpleasant. By swearing an affidavit on such issues an advocate subjects himself to the process of cross-examination thus removing him from his role of legal counsel to that of a witness, a scenario which should be avoided like plague. In my view, however innocent an averment may be, counsel should desist from the temptation to be the pipe stem through which such an averment is transmitted.28. This principle is grounded in the rules governing conflict of interest and the need for counsel as an officer of the Court to retain an appropriate level of professional objectivity. To protect the integrity of the legal process, the Court cannot countenance counsel for a party placing his or her own credibility in issue on an important point of evidence. However, countless cases have stated that there certain procedural motions which turn on evidence that counsel can provide, such as the chronology of the action or facts regarding how litigation has progressed. Indeed, in those types of cases, the factual evidence of the Counsel is preferable to that of the client and is largely considered non-contentious – merely a convenient way to organize and identify evidence already on Court record. Indeed, the affidavit itself might be unnecessary.”

Disposition 25. In the end, I issue the following orders;a.There be a stay of execution of the judgment and decree of the judgement and/or decree issued by Honourable B. Kasavuli (P.M) on 5th of August 2021 pending full hearing and determination of this Appeal.b.The Appellants deposit in a joint earning interest account in the name of the advocates for the respective parties within Sixty (60) days from the date of this Ruling.c.In default of (b), the application shall stand dismissed.d.Costs shall abide in the appeal.It so ordered.

RULING DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 15TH DAY OF MARCH, 2022. M.W MUIGAIJUDGE