[2022] KEHC 15907 (KLR)

Musyoka v Mibere & another (Civil Appeal E271 of 2021) [2022] KEHC 15907 (KLR) (Civ) (1 December 2022) (Ruling)

Neutral citation: [2022] KEHC 15907 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E271 of 2021

JK Sergon, J

December 1, 2022

Between

Joseph Musyoka

Appellant

and

Mary Kinya Mibere

1st Respondent

Boniface Muasya Nzioka

2nd Respondent

Ruling

1. The appellant/applicant in this instance has brought the Notice of Motion dated 26th May, 2022 supported by the grounds set out in its body and the facts deponed in the supporting affidavit. The applicant sought for the substantive orders for stay of execution of the ruling and judgment delivered on 7th May, 2022 and 18th December, 2020 respectively, in Milimani CMCC No. 5539 of 2016 pending the hearing and determination of this appeal.

2. The respondent opposed the Motion by filing the replying affidavit sworn by the 1st respondent Mary Kinya Mibere on 23rd June, 2022.

3. When the Motion came up for interparties hearing before this court, the parties respective advocates chose to rely on the averments made in their respective affidavits.

4. I have considered the grounds laid out on the body of the Motion, the facts deponed in the affidavits supporting and opposing the Motion and the brief oral arguments.

5. A brief background of the matter is that the 1st respondent instituted a suit against the applicant and the 2nd respondent vide the plaint dated 18th November, 2017 and sought for damages arising out of a road accident.

6. According to the court proceedings, default judgment was entered against the applicant and 2nd respondent on 18th December, 2020 upon the failure by the applicant and 2nd respondent to enter appearance and/or file their statements of defence.

7. Subsequently, the applicant filed the application dated 27th January, 2021 seeking to set aside the ex parte judgment together with leave to cross examine the 1st respondent and testify viva voce in person and adduce evidence.

8. Upon hearing the parties, the court vide the impugned ruling delivered on 7th May, 2021 dismissed the said application by stating that the ex parte judgment was obtained regularly as there was proper service. Being aggrieved by the aforementioned decision the applicant appealed to this court against the lower court ruling.

9. In his affidavit filed in support of the motion dated 26/5/2022, Mr. Joseph Musyoka stated that the firm of Kingoo Wanjau & Co. Advocates was on record for him in the Magistrate’s case and that at some point there was communication breakdown from the said advocate to extend that he was not informed on the progress of the case including hearing dates.

10. The applicant is apprehensive that he was totally unaware of this and had given his advocate full instructions to represent him and thought that he was on top of things as far as the case was concerned but only learnt that judgment had been entered against him after being notified by the respondent’s advocate.

11. The applicant avers that he sought an opportunity to prove that at the time of the accident in question which happened on 10th February, 2016 he had already sold the subject matter vehicle way back on 23rd August, 2008 that is 8 years on and had sold it to the 2nd respondent who was complacent and failed and/or neglected to effect transfer despite being furnished with all the necessary documents.

12. The applicant further avers that he hereby appeals against the ruling dated 7th May, 2021 which effectively denied him an opportunity to set aside the default judgment and present his evidence and seeks another stab at justice asking this court to give him an opportunity to be heard, this being a salient tenet of fair hearing.

13. In response, Ms. Mary Kinya Mibere stated that the said ruling in the said suit ought not to be disturbed as it will aid the appellant ill intent to delay the recovery of the decretal sum of the lower court suit since the same was delivered in a procedural and substantive manner.

14. She avers that the applicant has not demonstrated the loss they can or likely to suffer should the stay orders not be granted and that also he has not shown any reasonable ground for allowing stay of execution of the lower court suit.

15. On the issue of legal representation, the depositions made by the applicant avers that Kingoo Wanjau & Co. Advocates was the firm that was listed as representing him in the Magistrate's case, and at some time there was a breakdown in communication, resulting in the fact that he was not notified of the status of the case, including the dates of hearings.

16. The applicant stated that he was completely unaware of this, had given his advocate clear instructions to represent him, and believed he was in complete control of the situation with regard to the case. He only discovered that judgment had been entered against him after being informed by the respondent's advocate.

17. This Court is of the view that in the interest of justice, the mistake of the Advocate who had conduct of the matter in the lower Court should not be visited on the applicant herein. In the case of CFC Stanbic Limited versus John Maina Githaiga & another [2013] eKLR, the Court of Appeal held as follows-“On the issue of the mistake of counsel, it is not in dispute that the appellant gave instructions to its advocates in good time once it was served with the pleadings and summons to enter appearance. Therefore, the failure to enter appearance and file a defence is clearly attributable to its advocate who failed to enter appearance and file defence in good time. This being the mistake of counsel, the same ought not to be visited upon the appellant. This Court is guided by the case of Lee G Muthoga v Habib Zurich Finance (k) Ltd & Another, Civil Application No. Nai 236 OF 2009, where this Court held: "It's a widely accepted principle of law that a litigant should not suffer because of his advocate's oversight." In the instant appeal, we are of the view that the appellant should not suffer because of the mistakes of its counsel."

18. The principles guiding the grant of an application for stay of execution pending appeal are well settled. These principles are provided under Order 42 rule 6(2) of the Civil Procedure Rules which provides as follows:No order for stay of execution shall be made under subrule (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.

19. In the case ofConsolidated Marine vs. Nampijja & another, Civil App. No.93 of 1989 (Nairobi), the Court held that-“The purpose of the application for stay of execution pending appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising his undoubted right of appeal are safeguarded and the appeal if successful is not rendered nugatory”.

20. Substantial loss is a factual issue, which must be raised in the supporting affidavit and further supported by evidence. In dealing with the issue of substantial loss, I am alive to the fact that the applicant herein ought to establish that execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicants as successful parties in the appeal.

21. In the case of Shell Ltd vs Kibiru & Another, Civil Appeal No. 97 of 1986, Nairobi it was stated that-“The application for stay made before the High Court failed because the 1st of the conditions was not met. There was no evidence of substantial loss to the applicant, either in the matter of paying the damages awarded which would cause difficulty to the applicant itself, or because it would lose its money, if payment was made since the Respondents would be unable to pay the money.”

22. The applicant in this matter contends that unless the orders sought are issued, he stands to suffer prejudice as his right to representation and fair hearing will be curtailed since execution of the said judgment is very imminent.

23. The applicant further contends that he sought for a chance to show that, at the time of the accident in question, which occurred on February 10, 2016 he had already sold the subject vehicle on August 23, 2008 which is eight years earlier. He had sold it to the 2nd respondent, who was complacent and failed or neglected to effect transfer despite being given all the necessary documents.

24. On the other hand the respondent stated that the applicant has not demonstrated the loss they can or likely to suffer if the stay orders not be granted.

25. I am also alive to the reality that unless the applicant is granted an opportunity to defend its case, it stands to be condemned unheard, thereby undermining the dictates of substantive justice and violating the applicant’s constitutional right to be heard on its defence in the dispute before the same is conclusively determined.

26. From the foregoing, I am convinced that the applicant has reasonably shown the substantial loss it may suffer should the order for a stay of execution be denied.

27. Order 42 Rule 6(2)(b) of the Civil Procedure Rules stipulate in mandatory terms that the third condition that a party needs to fulfil so as to be granted an order for stay pending appeal is that he must furnish security. The applicant herein have given the issue of furnishing security a wide berth. This Court notes that in Butt v Rent Restriction Tribunal (1982) the Court of Appeal stated that a Court can order security upon application by either party or on its own motion and that failure to put security for costs as ordered will cause the order for stay of execution to lapse

28. In the case of Aron C. Sharma vs. Ashana Raikundalia T/A Rairundalia & Co. Advocates[2014] eKLR, the Court held that-“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 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.”

29. Bearing in mind that the nature of the security that may be deposited is left at the discretion of the Court, I hereby allow the application dated 26th May, 2022 and make the following orders-i.There shall be a stay of execution of the rulingand judgment delivered on 7th May, 2022 and 18th December, 2020 respectively, inMilimani CMCC no. 5539 of 2016 and all consequential orders on the condition that the applicant deposits the sum of Kshs.100,000/= in court within 30 days from today, failing which the order for stay shall automatically lapse.ii.Costs of the Motion to abide the outcome of the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 1ST DAY OF DECEMBER, 2022. ………………………J. K. SERGONJUDGEIn the presence of:……………………………. for the Appellant/Applicant……………………………. for the 1st Respondent……………………………. for the 2nd Respondent