[2023] KEHC 26895 (KLR)

Muriuki alias Micheal Ndei Muriuki v Muthee (Civil Appeal E040 of 2021) [2023] KEHC 26895 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26895 (KLR)

Republic of Kenya

In the High Court at Eldoret

Civil Appeal E040 of 2021

RM Mwongo, J

December 14, 2023

Between

Michael Ndei Muriuki alias Micheal Ndei Muriuki

Applicant

and

Isaac Ndegwa Muthee

Respondent

(Being an Appeal from the Judgment of Hon. M. Kivuti (SRM) delivered on 16th September 2021 in Baricho SPMCC No. 52 of 2019)

Ruling

1. In this application dated 15th December, 2021, the applicant seeks the following orders:i.Spent.ii.That Appeal dated 30th September, 2021 be struck out with costs to the Respondent;iii.That in the alternative the Appellant be directed to deposit the judgment amount of Kenya Shillings One Hundred and Two Thousand, Eight Hundred and Fifty (Kshs.102,850/=) in a joint interest earning account in the names of the two firms representing the parties;iv.That this Honourable Court be pleased to order for deposit of security for costs of this Appeal by the Appellant;v.That in the alternative, the Honourable Court be pleased to make an order for stay of execution.vi.That the costs of this Application be provided for.

2. The grounds of the application are set out as follows:i.That the Appellant feigned satisfaction with Judgement of the subordinate Court dated 16th September, 2021 and accepted settlement of the same yet proceeded to appeal against the judgement without procuring a valid decree.ii.That by accepting cheque number xxxx for Kshs.102,850/=the Appellant is estopped from seeking more monies from the Respondent and thus his Appeal is incurably defective.iii.That the Appeal is an attempt at unjust enrichment.

3. The applicant deposed a supporting affidavit with the following major averments:a.That the Honourable Court delivered a judgement on 16th September, 2021 in favour of the Appellant apportioning liability on 50:50 ratio between the Defendant and the Third Party while awarding them Kshs.102,850/= as damages as well as interest and costs of the suit.b.That the Respondent herein settled his 50% portion of the judgement vide cheque number xxxx forwarded to the Appellant's advocates on 4 November, 2021. c.That upon acceptance of the cheque the Appellant's advocates expressed dissatisfaction by filing this Appeal against the entire award of the Honourable Court; we learnt of the appeal more than two months after it had been filed as the Memorandum of Appeal was served upon us on 17th November 2021. d.Further, by accepting the payment made to them, the Appellant is estopped from making a further claim and thus I urge That the Honourable Court does direct the Appellant or his advocate to deposit the judgment amount in an interest earning account as the cheque should have been rejected and returned to the paying entity.e.That l am also of the opinion that the filing of the Record of Appeal by the Appellant is frivolous, vexatious and an abuse of the Court process with a sole motive of harassing the Defendant which renders the whole appeal void ab initio and fatally defective.

4. The respondents deposed a replying affidavit with the following major averments:i.That since the appeal was filed one year has not lapsed, and thus the appeal is not even ripe for dismissal for want of prosecution under Order 42 Rule 35 (2).ii.That as regards filing of the decree as stipulated under Order 42 Rule 2, the failure to do so does not warrant a dismissal of an appeal. Indeed, the Rule gives the Court discretion to grant the Appellant time to comply. This is the same import of Order 42 Rule 13 (4). It is worth pointing out that the practice has been that the decree is filed with the Record of Appeal.iii.That in relation to depositing the judgment sum as sought in prayer 3 of the motion, the Respondent/Applicant has not laid any basis for the same. Indeed, there is no legal basis for the prayer as the Appellant/Respondent is not seeking a stay of execution of the judgment pending appeal. Moreover, the Respondent/Applicant has not filed a cross appeal thus he is not contesting the judgment sum.iv.That as regards security for costs, the Respondent/Applicant has not established any factual and/or legal basis for grant of the prayer sought. Nowhere in the supporting affidavit has it been deposed that the Appellant/Respondent will be unable to pay the costs of the appeal if unsuccessful. It has equally not been averred that the appeal has no merit or that the Respondent/Applicant has a good response (Defence) to the appeal.v.That there would be no reason for the Appellant/Respondent to return the cheque issued. The Respondent/Applicant did not cross appeal his portion of the judgment and the instant appeal seeks enhancement of the award. Seeking an enhancement does not preclude the Appellant/Respondent from accepting what is already on the table; after all, an appeal does not operate as stay of execution.

5. The applicant deposed a further affidavit with the following major averments:a.That the application dated 15th December, 2021 has merit because the Respondent settled his 50% portion of the judgment vide a cheque that was collected by the Appellant's representative.b.That in response to paragraph 9 of the Replying Affidavit, the Respondent is not contesting the judgment sum of Kenya Shillings One Hundred and Two Thousand Eight Hundred and Fifty between the Defendant and the Third Party thus the reason he has not filed a cross appeal.c.That the Appeal filed by the Appellant is in bad faith and prejudicial to the Respondent because the Appellant accepted the decretal sum as full and final settlement of the claim then proceeded to file an Appeal on the same issues and facts.d.That the Appellant cannot assert that he did not represent the Appellant /Respondent that he was accepting the cheque as full and final settlement, yet he has refused and or ignored to return the cheque issued and wait until this matter has been determined.e.That the Appellant has not made proposal for security of costs, it is paramount for the Appellant to deposit security for costs.

6. The parties filed submissions as directed by the court

Applicant’s submissions Appeal is prejudicial as the decretal sum was paid 7. The applicant submits that the Appeal is prejudicial to the Respondent and should be struck out. The Appellant desires to mislead the Respondent that the case was wrapped up and collected the decretal sum. They are now attempting to engage in endless litigation on the same matter by his misconceived act to approbate and reprobate. This doctrine reflects a principle that a person cannot both approve and reject a principle, and this was upheld by the Court of Appeal in Behan & Okero Advocates v National Bank of Kenya [2007] eKLR:“....which was of the view that a party cannot be allowed to blow hot and cold at the same time. ”

8. A similar matter was discussed in the case of David Pius Mugambi & others v K.L.M Royal Airlines &another (2006) eKLR where it was held that:“..the applicant had accepted the decretal sum as final settlement of the claim =the general damages-awarded. The Respondent had fully paid and the appellant had accepted the payment as full and final settlement of the matter. I have no doubt in my mind that the moment the applicant accepted the said sum, the matter was closed and cannot be re-opened. Litigation must come to an end. I must also add that it would be highly prejudicial to the Respondent if the court were to re-open such a matter at this late hour. It would be manifestly unjust to the Respondent who paid in full, and the money was accepted without any qualifications or conditions, not only by the Counsel for the applicants, but also by the applicant’s themselves.”

Respondent submissions Striking out the appeal 9. The Appellant/Respondent submits that the Respondent/Applicant has not laid a basis for striking out the appeal, both in law and in fact. The Respondent/ Applicant has not cited any provision of the law to support his position on striking out the appeal as sought.

Security for costs and stay of execution 10. The respondent submits that, one, if the appeal is unsuccessful, since there is no cross appeal the issue of refund cannot arise; two, the Respondent/Applicant has not paid his share of costs in the lower court; that should operate as sufficient security; three, the Appellant/Respondent has not commenced any adverse and/or execution process against the Respondent/Applicant.

Claim for full and final settlement 11. The entire motion is hinged on the claim that the Appellant/Respondent received Kshs.51,425/= as full and final settlement of his claim. The Respondent/Applicant urges that the Appellant/Respondent is thus estopped from proceeding with this appeal. The Appellant/Respondent submits that this claim is unfounded in law and in fact.

12. Section 120 of the Evidence Act provides for the basis of estoppel in general. The section provides:“When one person has by his declaration, act or omissions, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief neither he nor his representative shall be allowed in any suit or proceedings between himself and such person or his representative to deny the truth of such thing.”

13. In David Pius Mugambi & Others v K.L.M. Royal Airlines &another [2006] eKLR the Applicant demanded and was paid the entire decretal sum and thereafter sought to appeal the judgment out of time.

14. Similarly, in Maynard Lusambili v Sarova Hotels [1996] eKLR the Plaintiff had signed a discharge certificate relinquishing any further claims against the Defendant, and later sought to make further claims. The Court noted that the Plaintiff willingly signed the certificate having understood its terms.

Issues for Determination 15. The critical issues for determination are:a.Whether the appeal should be struck out.b.Whether the applicant should make a deposit of the decretal sum as security for the appeal.

Analysis and Determination 16. The applicant seeks that the appeal dated 30th September, 2021 be struck out with costs. He deposed that the court delivered the judgement on 16th September, 2021 in favour of the Appellant apportioning liability on 50:50 ratio between the Defendant and the Third Party while awarding them Kshs.102,850/=as damages as well as interest and costs of the suit.

17. That upon acceptance of the decretal sum the Appellant's advocates expressed dissatisfaction by filing this Appeal against the entire award.

Whether the respondent should be estopped from pursuing the appeal 18. It is the applicant’s case that by accepting the payment made to them, the Appellant/respondent is estopped from making a further claim and thus the decretal sum should be deposited in an interest earning account as the cheque should have been rejected and returned to the paying entity.

19. Section 120 of the Evidence Act provides for the basis of estoppel in general. The section provides:“When one person has by his declaration, act or omissions, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief neither he nor his representative shall be allowed in any suit or proceedings between himself and such person or his representative to deny the truth of such thing.”

20. The respondent deposed that since the appeal was filed, one year has not lapsed, and thus the appeal is not even ripe for dismissal for want of prosecution under Order 42 Rule 35 (2).

21. In the case of Consolata Muthoni Kariuki v Martin Mutembei Kaburu & 2 others [2020] eKLR the court held that payment of the decretal sum does not fetter a party’s right to appeal the judgement. The court there stated:“The right to appeal is a constitutional right enshrined under Article 50 of The Constitution that provides for the right to a fair trial and to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court and thus the same cannot be fettered by the settlement of a decretal sum where the dissatisfied party feels the same was inordinately low.”

22. Similarly, in the present case, the respondent has a right to pursue his appeal.

Deposit of security for costs 23. The applicant seeks for this Honourable Court to order for deposit of security for costs of this appeal by the Appellant.

24. The respondent deposed that as regards security for costs, the Applicant has not established any factual and/or legal basis for grant of the prayer sought. Nowhere in the supporting affidavit has it been deposed that the Appellant/Respondent will be unable to pay the costs of the appeal if unsuccessful.

25. The issue of security is discretionary and it is upon the court to determine the same. In the absence of any basis being laid down for the grant of a prayer for security for costs, the same cannot be granted.

26. In the case of Arun C. Sharma v Ashana Raikundalia t/a Rairundalia & Co. Advocates & 2 Others [2014] eKLR the court stated:“The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. It is not to punish the judgment debtor….Civil process is quite different because in civil process the judgment is like a debt hence the applicants become and are judgment debtors in relation to the respondent. That is why any security given under Order 42 Rule 6 of the Civil Procedure Rules acts as security for the due performance of such decree or order as may ultimately be binding on the applicants. I presume the security must be one which can serve that purpose.”

Disposition 27. In light of the foregoing, my conclusion on the issues is as follows.

28. In respect of the issue as to whether the appeal should be struck out, I find and hold that the appeal should not be struck out

29. In respect of the issue as to whether the appellant should make a deposit of the decretal sum as security for the appeal, I hold that the applicant shall pay the outstanding decretal sum into court, as security for the appeal

30. Further I direct that since the record of appeal is already filed, the same shall be admitted within 45 days of today’s date, and the appellant is directed to take directions on the appeal within thirty days thereafter.

31. Orders accordingly.

DATED AT KERUGOYA THIS 14TH DAY OF DECEMBER, 2023. R. MWONGO..................JUDGEDelivered in the presence of:1. Mutua - for Applicant/Respondent2. Kirui Ms - for Respondent3. Murage - Court Assistant