[2017] KEHC 3900 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CIVIL APPEAL NO. 17 OF 2017

MURIUKI JOYCELINE .............................................................................1ST APPELLANT

PATRICK MWENDE MUTUKU ..............................................................2ND APPELLANT

VERSUS

PENINAH M. MUSAU ANOR (Suing as the legal representatives

ofBLESSING M. MUTISYA ..........................................................................RESPONDENT

RULING OF THE COURT

1. The Application dated 23rd February, 2017 is brought pursuant to the Provisions of Order 42 rule 6(1) (2), Order 51 Rule 1 of the Civil Procedure Rules 2010, Section 1A, 1B and 3A of the Civil Procedure act and all enabling Provisions of the law.

2. The Appellant/Applicant seeks this court’s order staying execution of the Judgement, decree and all consequential Orders in Kangundo PMCC No. 160 of 2015pending hearing and determination of the Appeal.

3. The application is premised on grounds that the Applicants being dissatisfied by the judgement aforestated has appealed against the whole judgement, the memorandum of appeal as well as the Application have been filed timeously and are merited; the Appellants who stand to suffer irreparable loss have already applied for certified copies of judgment, decree and proceedings; the Applicants are ready and willing to furnish security in the firm of an insurance Bond from UAP insurance company limited or any security as the court may deem reasonable for the due performance of any such decretal obligation as may ultimately be binding against them.

4. The first Appellant swore an affidavit in support of the Application having been authorized by his Co-Applicants. He deposed that they are obligated to pay Kshs. 657,000/= plus costs and interest following the decree issued; the judgement sum being substantial they stand to suffer substantial loss and prejudice; being aggrieved by the judgment if execution proceeds they will suffer loss. The Applicant further avers that the appeal has high chances of success and it will be rendered nugatory if stay is not granted. The Applicants finally avers that they are not snatching the fruits of judgment from the Respondent but exercising their legal right of Appeal.

5. The Respondent did not file a replying affidavit but her learned counsel filed grounds of opposition dated 3/3/2017 which is to the effect that the Applicants have not met the set criteria for grant of stay pending Appeal and further that the Application is not only bad in law, incompetent but is an attempt to deny the Respondent the fruits of a successful litigation.

6. It was the submission of counsel for the Applicants that the Applicants insurers shall furnish security in the form of an insurance bond or offer such other security as ordered by the court. It was further submitted for the Applicants that if stay is not granted the Appeal which has high chances of success shall be rendered nugatory and that the Applicants stand to suffer substantial loss more so from the fact that the Respondent might not be in a position to refund the money in the event the Appeal succeeds. It was finally submitted for the Applicants that the Application has been filed timeously as there was no undue delay.

7. The Respondent’s counsel on the other hand submitted that firstly that there had been a consent judgment on liability at the ratio of 10% to 90% in favour of the Respondent and that the Applicant has not satisfied the conditions set out in order 42 Rule 6 of the Civil Procedure Rules so as to merit the grant of an order of stay of execution. Counsel submitted that an order of stay of execution should not be granted because the decree is for money which can be repaid. Finally it was submitted that the Applicants have not proved what substantial loss is likely to be suffered by them if the stay is not granted.

8. It is the law that the court in exercising its discretion to grant stay of execution, the question to be decided is whether substantial loss may result unless the stay order is granted, whether the Application is made without delay and whether the Applicant has given security for the due performance of the decree that may be binding upon him (see Order 42 Rule 6(2) of the Civil Procedure Rules).

9. It has been stated in the case of MUKOMA VS ABUOGA [1988] KLR 645 thus:

“...........................................The cornerstone of both jurisdictions that is what has to be prevented because such a loss would render the appeal nugatory. Therefore it is necessary to preserve the status quo.”

10. Going by the above authority and the criteria set out in Order 42 Rule 6 of the Civil Procedure Rules, it is noted that Judgment in the case appealed against was entered on the 18th January, 2017. The Applicants filed the Memorandum of Appeal on 15/02/2017 and the present Application filed on the 23/2/2017. It is deemed that upon the delivery of the judgment on 18/1/2017 the Applicants were entitled to an automatic thirty (30) days which is the window period for Appeal purposes if need be. Hence the present Application was filed within a period of thirty (35) days from the date of delivery of judgment. There was therefore no delay in making of the Application.

11. The next issue to be addressed is whether the Applicants will suffer substantial loss if the order sought is not granted. Judgement was entered in the sum of Kshs. 657,000/=. It was the contention of the Applicants in the memorandum of Appeal that the entire award of damages was excessive in the circumstances. The Applicants further contented that if the said sum is paid to the Respondent and the Appeal herein succeeds eventually the Respondent would not be able to refund the said sums. Indeed the Respondent opted not to offer any evidence to the effect that the sums would be refunded in the event of the Appeal succeeding. If that happens then it is likely that the Applicants would suffer loss. Since the Applicants are ready and willing to furnish security for the due performance of the decree it would benefit both the Applicants and the Respondent if an order for furnishing security is made.

12. It is noted that the parties herein had entered a consent judgment on liability at the ratio of 10% to 90% in favour of the Respondent and hence the appeal herein is only on the quantum of damages and not on liability. Counsel for the Respondent has submitted that half of the decretal sum be ordered to be paid while the rest be deposited into court awaiting the determination of the Appeal. On the other hand Counsel for the Applicants submitted that the Applicants be allowed to furnish an insurance bond or do furnish other suitable security as ordered by the court. I need to strike a middle ground in the matter and ensure that the Respondent is not deprived of the fruits of the Judgment and at the same time enssure that the Applicants Appeal is not rendered nugatory in the event it succeeds.

13. In the result therefore I grant stay of execution of the judgment decree and all consequential Orders in Kangundo PMCC No. 160 of 2015 pending the hearing and determination of the appeal herein on condition that the Applicants pay half the decretal sums to the Respondent and the remaining half be deposited into an inters earning account in the joint names of the Advocates for the Applicants and Respondent within thirty (30) days from the date hereof. In default the stay herein will automatically lapse. The costs shall be in the cause.

It is so ordered.

Dated, signed and delivered at MACHAKOSthis .. 17th day of ..JULY...2017.

D. K. KEMEI

JUDGE

In the presence of:-

Ntabo for Kamolo for Respondent

C/A: Kituva