[2017] KEHC 4339 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT VOI

CIVIL APPEAL NO 2 OF 2017

M.O.M AMIN TRANSPORTERS LIMITED...................................................1STAPPLICANT

MARIAM AMIN BAHI....................................................................................2ND APPLICANT

VERSUS

NJENGA GACHANJA...............................................................................1ST RESPONDENT

HANNAH RINDI THUMBI (suing as the administrators

of the Estate of WILSON GACHANJA NJENGA(Deceased)...........2NDRESPONDENT

RULING

INTRODUCTION

1. The Applicants’ Notice of Motion application dated 27th February 2017 and filed on 28th February 2017 was brought pursuant to the provisions of Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules and Section 1A, 1B and 3A of the Civil Procedure Act and other enabling provisions of the law. Prayers Nos (1),(2) and (4) therein were spent. The application sought the following remaining prayers:-

1. Spent

2. Spent

3. THAT this Honourable Court be pleased to order a stay of execution of the Judgment entered herein on 23rd January 2017 pending the hearing and determination of the appeal.

4. Spent

5. THAT the costs of this application be provided for.

THE APPLICANTS’ CASE

2. The Applicants’ application was supported by the Affidavit of the 2nd Applicant that was sworn on 27th February 2017. Their case was that the Learned Trial Magistrate she erred in law and fact by holding that they were wholly liable for the accident and also erred in law and fact when she adopted the wrong principles in awarding damages therein.

3. It was their further contention that if a stay of execution was not granted, they would suffer substantial loss as the payment of the decretal sum of Kshs 1,834,688/=would cripple their transport business. They relied on the case of Equity Bank Limited vs Taiga Adams Company Limited [2006] eKLR where it was held that the only way an applicant could demonstrate substantial loss was that it would not be in a position to be reimbursed by a person with no means. They were willing to furnish security.

4. In this regard, they placed reliance on the case of Civil Application No NAI 6 of 1979 Butt vs Rent Restriction Tribunal where Madan JA (as he then was) observed that there was a large amount of money involved in the case therein justifying the grant a stay of execution pending appeal.

5. They were also emphatic that they filed the present application without any delay, the judgment having been delivered on 23rd January 2017 and the said application having been filed on 28th February 2017.

6. In a nutshell, they submitted that they had satisfied the conditions in Order 42 Rule 6 of the Civil Procedure Rules that indicate that an applicant seeking a stay of execution pending appeal must satisfy the following conditions:-

a. Substantial loss may result to the applicant unless the order is made;

b. The application has been made without undue delay;

c. Such security as to cost has been given by the applicant.

THE RESPONDENT’S CASE

7. On 6th April 2017, the Respondents filed Grounds of Opposition of even date. They contended that the Appeal herein was not merited as the Applicants had not demonstrated how they would suffer substantial loss if the stay of execution was not granted. They added that the Applicants ought to deposit the entire decretal sum in an interest earning account in the joint names of their advocates and those of the Applicants within fourteen (14) days of the date of the Ruling herein.

8. It was evident from their Written Submissions that they were in agreement with the Applicants’ Written Submissions regarding when a stay of execution pending appeal can be granted. They relied on the cases of Kiplagat Kotut vs Rose Jebor Kipngok [2015] eKLR,Kenya Shell Limited vs Kibiru (1986) KLR 410 and Kenya Commercial Bank Limited vs Sun City Properties Limited & 5 Others [2012] eKLR where the common thread was that a stay of execution will not be granted unless the conditions in Order 42 Rule 6 of the Civil Procedure Rules are satisfied.

9. Notably, Order 46 Rule 6 (2) of the Civil Procedure Rules, 2010 provides that an applicant who is seeking a stay of execution pending appeal must demonstrate the following:-

1. Substantial loss may result to the applicant unless the order was made;

2. The application was made without unreasonable delay; and

3. Such security as the court orders for the due performance of such decree or order as may ultimately binding on him has been given by the applicant.

10. Bearing in mind the aforesaid conditions, it was the view of this court that the Applicants did indeed file the present application timeously. The judgment was delivered on 23rd January 2017 and the present application filed on 28th February 2017. A period of one (1) month between the time the judgment was delivered and this application filed could not be said to have been inordinate delay. The Applicants willingness to furnish security demonstrated that they had met two (2) of the conditions set out in Order 42 Rule 6 of the Civil Procedure Rules.

11. To satisfy the third condition of Order 42 Rule 6 of the Civil Procedure Rules, the Applicants were required to demonstrate that they would suffer substantial loss if they were not granted a stay of execution pending appeal. As can be seen hereinabove, the Respondents did not furnish the court with proof that they were people of means instead opting to file Grounds of Opposition.

12. This court was, however, not satisfied that the Applicants’ business would have been crippled if they paid the Respondents’ the entire decretal sum of Kshs 1,834,688/=. However, in the absence of such proof, it was not known how the Applicants would recover the decretal sum from the Respondent’s in the event they were successful on their appeal. That could therefore be deemed to be substantial loss as was held in the case of Butt vs Rent Restriction Tribunal (Supra). Indeed, substantial loss does not only connote loss of a particular amount of money. Rather, it alludes to a situation where a successful litigant is likely to suffer hardship in recovering monies he would have paid before an appeal was heard.

13. Evidently, the three (3) prerequisite conditions set out in the saidOrder 42 Rule 6 of the Civil Procedure Rules, 2010 cannot be severed. The key word is “and”. It connotes that all three (3) conditions must be met simultaneously. From the foregoing, it was evident that the Applicants were able to demonstrate that they had satisfied all the requisites of Order 42 Rule 6 of the Civil Procedure Rules.

14. As the Applicants are entitled to exercise their right of appeal, it was in the interests of justice that a stay of execution of the judgment of the Learned Trial Magistrate ought to be granted so as not to render their appeal nugatory. Appreciably, the Respondents were not really opposed to a grant of stay of execution provided that the Applicants deposited the decretal sum in an interest earning account as aforesaid.

15. In the case of Ujagar Singh vs Runda Coffee Estates Limited [1966] EA 263, the court therein invoked its jurisdiction and ordered the preservation of the status quo pending the hearing and determination of the appeal. The court therein observed thus:-

“…It is not normal for a court to grant stay of execution in monetary decrees but where there are special features such as the issue or the regularity of the judgment, the fact that the amount payable under the decree being substantial and the fact that the plaintiff has no known assets within the jurisdiction from which the applicant can recoup in the event the appeal is successful…”

16. Accordingly, having considered the parties’ pleadings, affidavits, written submissions and the case law relied in support of their respective cases, it was the considered view of this court that a stay of execution pending the hearing and determination of the intended appeal should be granted so as not to render the Applicants Appeal nugatory.

DISPOSITION

17. Accordingly, the upshot of this court’s ruling was that the Applicants’ Notice of Motion application dated 27th February 2017 and filed on 28th February 2017 was merited and the same is hereby allowed in the following terms:-

1. THAT there shall be a stay of execution of Judgment that was delivered by Hon E.G. Nderitu on 23rd January 2017pending the hearing and determination of the intended appeal on condition the Applicants shall deposit into an interest earning account in the joint names of the Applicants’ and Respondents’ advocates the entire decretal sum of Kshs 1,834,688/=within the next sixty (60) days from the date hereof i.e. by 18th September 2017.

2. For the avoidance of doubt, in the event, the Applicants shall default on Paragraph 17 (1) hereinabove, the conditional stay of execution shall automatically lapse.

3. Costs of the application herein shall be in the cause.

4. Either party is at liberty to apply.

18. It is so ordered.

DATED and DELIVERED at VOI this 18th day of July 2017

J. KAMAU

JUDGE