[2022] KEHC 13688 (KLR)

Mutiso v Mutiso (Civil Appeal 60 of 2018) [2022] KEHC 13688 (KLR) (6 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13688 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal 60 of 2018

GV Odunga, J

October 6, 2022

BERNARD PHILIP MUTISO...........................APPELLANT VERSUS TABITHA MUTISO...............................RESPONDENT

Between

Tabitha Mutiso

Plaintiff

and

Bernard Philip Mutiso

Defendant

(Being an appeal from the judgment of the Chief Magistrate’s Court at Machakos delivered on the 30th day of May, 2018 by Hon. A. Lorot (Mr.) Senior Principal Magistrate in CMCC No. 1024 of 2002)

Ruling

1. On April 26, 2022, this Court delivered a judgement in this matter in which it dismissed the appeal but corrected the judgement of the trial court by incorporating the awards under pain and Suffering of Kshs 10,000. 00 and loss of expectation of life in the sum of Kshs 100,000. 00 in the final judgement.

2. Appellant herein seeks a stay of execution of the said judgment and decree as well as all consequential orders thereto pending the hearing and determination of the appeal at the Court of Appeal.

3. The application is supported by an affidavit sworn by the applicant herein, Bernard Philip Mutiso, on May 5, 2022. According to the deponent, being aggrieved by the said judgment, he filed an Appeal at the Court of Appeal which appeal, in his view, raises triable issues, has high chances of success and will be rendered nugatory and futile unless the orders sought herein are granted.

4. It was averred that in its judgment the Court upheld the findings of the trial court which had found the Appellant wholly liable for the accident owing to his failure to testify and give controverting evidence. However, the court disregarded crucial testimonies of the Plaintiff’s own witnesses specifically PW1 and PW2 who categorically blamed the deceased for having a hand in causing of the accident.

5. It was averred that the Respondent had commenced execution proceedings against him hence his apprehension that the Respondent would proceed with the execution unless stay orders sought herein are granted. It was his view that such execution would render the appeal nugatory and occasion irreparable harm upon him. Further, he deposed, the execution process would essentially lock him from the seat of justice and from exercising his constitutional right to an appeal. On the other hand, the Respondent would not suffer any prejudice by the orders sought herein being granted by the Court as a substantial portion of the decretal amount was already deposited in court prior to the hearing of this appeal and he had no objection to having the amount already deposited remaining in court as security until after the determination of the Appeal. He however, undertook to abide by any other conditions of the court.

6. In a further affidavit, he reiterated that though the Notice of Appeal was lodged within the prescribed timelines, the same was not immediately endorsed by the Deputy Registrar as his advocates were advised to leave the filed copies at the court and to have them collected at a later date after it had been endorsed. He disclosed that the Respondent’s advocates acknowledged being served with a Notice of Appeal within the prescribed timelines hence the failure in serving an endorsed Notice of Appeal from the court upon the Respondents cannot be attributed to the Appellant as the Notice of Appeal was properly lodged in court within the stipulated timeframes for filing of an appeal but due to the court requiring more time to endorse it his advocates were unable to serve the endorsed copy of the Notice of Appeal upon the Respondents in the first instance.

7. Based on legal advice, he averred that a Notice of Appeal having been lodged within the statutory timelines stipulated under the law, the Court has jurisdiction to hear and make a determination on the application for stay of execution filed herein. According to him, where there is no actual appeal already lodged like in this instance there nevertheless must be an intention to appeal which is manifested by lodging of a Notice of Appeal for the Court to be vested with jurisdiction to entertain an application for stay of execution.

8. The Appellant reiterated that he stands to suffer substantial loss if the orders sought herein are not granted since execution proceedings have since commenced by the extraction of the decree and certificate of costs by the Respondent who has initiated proceedings to have the amount deposited in court as security released to her.

9. The Appellant averred that the decree emanating from this Court’s proceedings is a money decree and the Respondent has not demonstrated her means and how she will be able to refund the said money if the same is released to her or a substantial portion of the money hence there is reasonable basis that has been laid as regards the substantial loss that the Appellant is likely to suffer in the event stay orders are not issued and his appeal succeeds.

10. According to the Appellant, it is therefore in the interests of justice that the orders sought herein should be granted.

11. In response to the application, the Respondent swore an affidavit in which she deposed that the purported Notice of Appeal herein has not been filed as is by law required and thus there is no proper Notice of Appeal on record. It was her view that in the absence of the requisite Notice of Appeal, this Court lacks jurisdiction to hear and determine the present application.

12. It was further averred that since this appeal was dismissed with costs, it is trite principle that stay orders cannot be granted against a negative order. Based on legal advice, she deposed that the Applicant is not required to persuade this Court that his Appeal has high chances of success but rather, the arguability of the appeal. This being the second appeal, it was averred that the Applicant miserably failed to demonstrate plausible and conceivably persuasive grounds of law to overturn the Judgement delivered in her favour.

13. It was further averred that the Applicant had not made the least attempt to establish the substantial loss he stands to suffer if at all there is any, if stay Orders are not granted. The Respondent disclosed that no proclamation had been done nor could execution ensue before filing and taxation of a Party and Party Bill of Costs.

14. The Respondent noted that the Applicant had neither offered any reasonable security nor demonstrated how difficult and potentially devastating financially he will suffer if stay is declined. She asserted that since the security the Applicant had deposited in Court was in relation to the First Appeal which was duly determined on April 26, 2022, the same ought to be released to her.

15. The Respondent lamented that the orders sought herein are highly prejudicial to her because they are geared towards scuttling her enjoyment of the fruits of lawfully and/or regularly obtained judgements. It was disclosed that the Applicant herein is a man of means owing to the fact that he is a Lieutenant Colonel as evident from the testimony of PW1 and was not only employing delaying schemes but also defeatist tactics with a view of frustrating her. It was therefore her view that this Application is an afterthought and an abuse of the court process and implored this Court to dismiss the same with Costs.

16. In his submissions the Appellant contended that the Notice of Appeal having been filed and served timeously as per the rules, there is a valid appeal filed which then grants the Court jurisdiction to hear and make a determination on the application for stay of execution. In support of this submission, the Appellant relied on Florence Seyanoi Kibera & Anor v Deborah Achieng Aduda & Anor Civil Application No. 211 of 2018 where the Court of Appeal held that for the court to assume jurisdiction to hear an application for stay of execution under rule 5(2)(b) of the Court’s Rules there has to be a notice of appeal against the judgment intended to be stayed. The Appellant also cited Order 42 Rule 6 (1) of the Civil Procedure Rules and submitted that a court from whose decision an appeal is preferred can order for a stay of execution of its judgment.

17. According to the Appellant, the purpose of an application for stay of execution pending an appeal is to preserve the subject matter that is to be executed so that the rights of the Appellant who is exercising his undoubted right of appeal are safeguarded, to save time and the appeal if successful, is not rendered inconsequential. In this case it was submitted that the appeal at hand will be rendered nugatory if the stay order is not granted as execution has commenced.

18. The Appellant submitted that the relief sought herein is discretionary although, as it has been said, the discretion must be exercised judicially. Therefore, stay of execution should only be granted where sufficient cause has been shown by the Applicant and in determining whether sufficient cause has been shown, the court should be guided by the three prerequisites provided under Order 42 Rule 6 of the Civil Procedure Rules.

19. As regards the delay, it was submitted that there was no undue delay in applying for stay since judgment was delivered on April 26, 2022 and the Applicant lodged a Notice of Appeal on May 6, 2022 and served it upon the Respondent’s advocates on the same day together with this application. On substantial loss, it was submitted that since execution process has been commenced, the Applicant will suffer substantial loss if the orders of stay of execution are not granted. Should the Applicant be compelled to pay the decretal sum to the Respondent, it was submitted, this would amount to substantial loss being occasioned to the Applicant should the appeal succeed since the Respondent’s means, resources and assets are unknown to the Applicant hence the Respondent would be unable to pay back or refund the decretal sum as she is a man of straw. It was noted that nowhere in her Replying Affidavit did the Respondent depose that she has the capacity to refund the decretal sum should the Appeal succeed. Apart from denial that she is not a man of straw, it was noted that the Respondent had not demonstrated her own capabilities in refunding or paying back the money should the appeal succeed hence validating the Applicant’s concerns.

20. In support of his submissions, the Appellant relied on Nation Newspapers Limited v Peter Baraza Rabando[2007] eKLR and contended that though this matter revolves around a money decree stay can be issued. The Appellant further relied on Africa Eco-camps Limited and Exclusive African Treasurers Limited, Civil Application No 183 of 2014 where the Court of Appeal in granting stay of execution stated that; once an Applicant expresses a reasonable fear that a Respondent would be unable to pay back the decretal sum, the evidential burden shifts to the Respondent to show what resources he has to satisfy the decree should the appeal succeed, since that is a matter likely to be peculiarly entirely within the knowledge of the Respondent.

21. Therefore, it was submitted, the Respondent in this case is charged with the responsibility of satisfactorily demonstrating to the court that she shall be in a position to refund the decretal amount should the appeal succeed and in the event that the Respondent fails to demonstrate to the court that she will be able to refund the decretal amount the court is obliged to grant the stay. In support of this position reference was made to Nickson Muthoka Mutavi v Kenya Agricultural Research Institute Civil Appeal No 93 of 2012 and it was submitted that the failure of the Respondent in demonstrating her means and how she will be able to refund the said money is proof of the reasonable basis laid by the Applicant herein as regards the substantial loss he is likely to suffer.

22. It was further submitted that the Respondent’s response is tantamount to calling upon this court to make a pronouncement on the overwhelming chances of success of the intended appeal which is not a condition precedent under Order 42 rule 6 of the Civil Procedure Rules for grant of stay since what is permissible and desirable for the Applicant to disclose is the nature of its intended appeal so that the Court satisfies itself that in determining whether or not to exercise its discretion in favour of the Applicant, it is not doing so on frivolous grounds.

23. It was submitted that the appeal to be filed herein is an appeal to the Court of Appeal which is filed by firstly lodging a Notice of Appeal at the High Court and reference was made to Safaricom Limited v Ocean View Beach Hotel Limited & 2 Others[2009] eKLR.

24. From the foregoing, it was submitted that a Notice of Appeal having been lodged the court herein is not obligated to further seek to inquire into the nature of the intended appeal in order to determine whether the appeal has overwhelming chances of success, a power that can only be exercised by the Appellate court.

25. On security, it was submitted that Order 42 Rule 6(2) (b) gives the court unfettered discretion and therefore it can exercise this discretion by granting an order for the payment or deposits of the decretal sum. In compliance with the said provision the court can therefore order the Applicant to deposit the decretal sum or a part thereof in court to act as security. The Appellant had already deposited part of the decretal sum in court when he moved to this Court on a first appeal and is ready to abide by any further conditions of the Court including a directive that the amount already deposited as security remains in court as he proceeds on a second appeal till the conclusion of the appeal at the Court of Appeal.

26. The Court was therefore urged to find that the Application dated May 5, 2022, has merit and grant the same.

Respondent’s Submissions 27. On behalf of the Respondent reliance was placed on Rule 75(1) & (2) of the Court of Appeal Rules and it was submitted that the Appellant’s Notice of Appeal dated May 4, 2022 does not bear the Court’s Stamp thus it is not filed as envisaged under the said provisions which are couched in mandatory terms. According to the Respondent, lodging is synonymous with filing and thus the aforesaid legal terms are used interchangeably. In this regard, reliance was placed on the case of Prideinn Hotels & Investments Limited v Tropicana Hotels Limited [2018] eKLR and it was submitted that jurisdiction is not only a central but also an integral part of our Civil Justice Nomenclature hence in the absence of the requisite Notice of Appeal, this Court lacks jurisdiction to hear and determine the present Application. In this regard the Respondent relied on the locus classicus case of Samuel Kamau Macharia & Another v KCB Ltd & 2 Others [2011]eKLR and The Owners of Motor Vessel Lilian “S” v Caltex Oil (Kenya) Ltd (1989) KLR

28. As to whether the Court has jurisdiction before a Notice of Appeal or Appeal is filed, to entertain the aforementioned Application, the Respondent relied on Nguruman Limited v Shompole Group Ranch & Another [2014] eKLR and Nairobi City Council v Resley (2002) EA 494.

29. It was further submitted that the Applicant has miserably failed to demonstrate the substantial loss he will suffer, if stay orders are not granted. Further, the Applicant has not established how difficult and potentially devastating financially he will suffer if stay is denied nor offered any security. Moreover, the security the Applicant had deposited in Court was in respect to the First Appeal which was duly determined on April 26, 2022 and thus the said Security ought to be released unto the Respondent.

30. In any case, it was noted, no proclamation has been done and that it is common knowledge that execution cannot ensue before filing and taxation of the requisite party and party bill of costs. It was submitted that by virtue of Sections 107-109 of the Evidence Act, the onus is upon the Applicant. While the applicant has asserted that his Appeal has high chances of success, what is required of him is to demonstrate the arguability of the Appeal. It was however submitted that bearing in mind that this is a second Appeal, the Applicant has failed to establish plausible and conceivably persuasive grounds of law to overturn the judgement delivered in favour of the Respondent.

31. In the Respondent’s view, the orders sought herein are highly prejudicial to the Respondent because they are aimed at scuttling her enjoyment of the fruits of a lawfully and/or regularly obtained judgement. On the other hand, the Applicant is a Lieutenant Colonel as explicitly captured in the testimony of PW1 and thus he is a man of means.

32. Regarding the issue whether a stay can be granted on negative orders, it was submitted that negative orders are incapable of being stayed owing to the fact that there is absolutely nothing to stay. In this case it was submitted that vide the judgement dated and delivered on April 26, 2022, this Court dismissed the Applicant’s appeal with costs to the Respondent hence there is no positive order herein capable of being stayed and that it is trite principle that Court orders are not issued in vain. In this regard the Respondent relied on Kaushik Panchematia & 3 Others v Prime Bank Ltd & Another (2020) eKLR, Milka Jeruto v Fina Bank Ltd (2013) eKLR, National Cereals and Produce Board vEvrad Suppliers & General Contractors Ltd, Nairobi Civil Application No Nai 48 of 2012(UR) 33 of 2012 and Western College of Arts & Applied Sciences v Oranga & Others [1976] KLR.

33. On costs, the Respondent relied on Section 27(1) of The Civil Procedure Act and urged the Court to dismiss the same with costs.

Determination 34. I have carefully considered the application, the affidavits filed, submissions made as well as authorities cited by counsel for both parties. The first issue for determination is whether this Court has the jurisdiction to grant the orders sought. I agree with the Respondents that without a Notice of Appeal being lodged by the Applicant, this Court would have no jurisdiction to entertain the application for stay. In other words, it is condition precedent that before the Court grants a stay of execution pending an appeal to the Court of Appeal, there must be in place a Notice of Appeal filed by the Applicant. This was the position inSafaricom Limited v Ocean View Beach Hotel Limited & 2 Others [2009] eKLR, where Omolo, JA held:“At the stage of determining an application under Rule 5(2)(b) there may be no actual appeal. Where there is no actual appeal already lodged there nevertheless must be an intention to appeal which is manifested by lodging of a Notice of Appeal. If there is no Notice of Appeal lodged, one cannot get an order under Rule 5(2) (b) because as I have already pointed out, the jurisdiction of the Court of Appeal is limited to hearing appeals from the High Court and if there is no appeal or no intention to appeal as manifested by lodgment of the Notice of Appeal the Court of Appeal would have no business to meddle in the decision of the High Court.”

35. While I agree that filing and lodging for the purposes of the Application mean the same thing, I however disagree when, as the Respondent seems to suggest, the two phrases are read to also include endorsement by the Registrar. To my mind, the Notice of Appeal is filed when it is presented to the Registry and the prescribed fees paid. The endorsement by the Registrar which follows later is not the same thing as the filing or lodging of the Notice. I am guided in this determination by the decision of the Court of Appeal in Kenya Bus Services Ltd (Stage Coach Bus Service) v Muna IsaackCivil Appeal (Application) No 223 of 2001 in which it was held that:“Under rule 74 of the Court of Appeal Rules, any person who desires to appeal to the Court of Appeal shall give notice in writing which shall be in duplicate with the Registrar of the Superior Court and the date envisaged by the rule is the date upon which the Notice of Appeal is filed and the requisite fees paid for it. The date upon which the Registrar endorses his signature and affixes the seal of the Court is not material for the service of the Notice of Appeal…There is no requirement under the rules that the Notice of Appeal should not be served upon persons affected by the appeal until the Registrar appends his signature and the seal on it.”

36. That position was adopted by the same Court in Hezekia Michoki v Elizaphan Onyancha Ombongi Civil Application No Nai 212 of 2008.

37. It is now trite that once the Applicant files the Notice of Appeal, the Court is then seized with the jurisdiction to entertain the application for stay pending an appeal and as was held in Purshotam Ramji Kotecha & Another v Narandas Ranchoddas Pau & Another Civil Application No Nai 63 of 2003:“Rule 5(2)(b) of the Court of Appeal Rules only speaks of notice of appeal, not a valid notice of appeal and when determining an application under that rule, the Court is not concerned with the validity or otherwise of the notice.”

38. I have perused the record of these proceedings and I have seen a Notice of Appeal dated May 4, 2022 and filed on May 6, 2022. Since the decision sought to be appealed against was made on April 26, 2022, it follows that the Notice was timeously filed hence this Court has the jurisdiction to entertain the instant application.

39. Order 42 rule 6(1) and (2) of the Civil Procedure Rules provides as follows:“(1)No appeal or second appeal shall operate as a stay of execution or proceeding under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.(2)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.”

40. InVishram Ravji Halai v Thornton & TurpinCivil Application No. Nai. 15 of 1990 [1990] KLR 365, the Court of Appeal held that whereas the Court of Appeal’s power to grant a stay pending appeal is unfettered, the High Court’s jurisdiction to do so under Order 41 rule 6 of the Civil Procedure Rules is fettered by three conditions namely, establishment of a sufficient cause, satisfaction of substantial loss and the furnishing of security. Further the application must be made without unreasonable delay. To the foregoing I would add that the stay may only be granted for sufficient cause and that the Court in deciding whether or not to grant the stay and that in light of the overriding objective stipulated in sections 1A and 1B of the Civil Procedure Act, the Court is no longer limited to the foregoing provisions. The courts are now enjoined to give effect to the overriding objective in the exercise of its powers under the Civil Procedure Act or in the interpretation of any of its provisions. According to section 1A(2) of the Civil Procedure Act “the Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective” while under section 1B some of the aims of the said objective are; the just determination of the proceedings; the efficient disposal of the business of the Court; the efficient use of the available judicial and administrative resources; and the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties.

41. In Stephen Boro Gitiha v Family Finance Building Society & 3 Others Civil Application No Nai 263 of 2009, Nyamu, JA on 20/11/09 held inter alia that the overriding objective overshadows all technicalities, precedents, rules and actions which are in conflict with it and whatever is in conflict with it must give way.

42. The same Judge inKenya Commercial Bank Limitedvs. Kenya Planters Co-operative UnionCivil Application No Nai 85 of 2010 held that:“where there is a conflict between the statute (overriding objective principle) and a subsidiary legislation (rules of the court) the statute must prevail. Although the rules have their value and shall continue to apply subject to being O2 complaint, the O2 principle is not there to fulfil them but to supplant them where they prove to be a hindrance to the O2 principle or attainment of justice and fairness in the circumstances of each case”.

43. It therefore follows that all the pre-Overriding Objective decisions must now be looked at in the light of the said provisions. This does not necessarily imply that all precedents are ignored but that the same must be interpreted in a manner that gives effect to the said objective. What is expected of the Court is to ensure that the aims and intendment of the overriding objective as stipulated in section 1A as read with section 1B of the Civil Procedure Act are attained. It is therefore important that the Court takes into consideration the likely effect of granting the stay on the proceedings in question. In other words, the Court ought to weigh the likely consequences of granting the stay or not doing so and lean towards a determination which is unlikely to lead to an undesirable or absurd outcome. What the Court ought to do when confronted with such circumstances is to consider the twin overriding principles of proportionality and equality of arms which are aimed at placing the parties before the Court on equal footing and see where the scales of justice lie considering the fact that it is the business of the court, so far as possible, to secure that any transitional motions before the Court do not render nugatory the ultimate end of justice. The Court, in exercising its discretion, should therefore always opt for the lower rather than the higher risk of injustice. See Suleiman v Amboseli Resort Limited [2004] 2 KLR 589. This was the position of Warsame, J (as he then was) inSamvir Trustee Limited v Guardian Bank Limited Nairobi(Milimani) HCCC 795 of 1997 where he expressed himself as hereunder:“Every party aggrieved with a decision of the High Court has a natural and undoubted right to seek the intervention of the Court of Appeal and the Court should not put unnecessary hindrance to the enjoyment and exercise of that right by the defendant. A stay would be overwhelming hindrance to the exercise of the discretionary powers of the court…The Court in considering whether to grant or refuse an application for stay is empowered to see whether there exist any special circumstances which can sway the discretion of the court in a particular manner. But the yardstick is for the court to balance or weigh the scales of justice by ensuring that an appeal is not rendered nugatory while at the same time ensuring that a successful party is not impeded from the enjoyment of the fruits of his judgement. It is a fundamental factor to bear in mind that, a successful party is prima facie entitled to the fruits of his judgement; hence the consequence of a judgement is that it has defined the rights of a party with definitive conclusion. The respondent is asserting that matured right against the applicant/defendant…For the applicant to obtain a stay of execution, it must satisfy the court that substantial loss would result if no stay is granted. It is not enough to merely put forward mere assertions of substantial loss, there must be empirical or documentary evidence to support such contention. It means the court will not consider assertions of substantial loss on the face value but the court in exercising its discretion would be guided by adequate and proper evidence of substantial loss…Whereas there is no doubt that the defendant is a bank, allegedly with substantial assets, the court is entitled to weigh the present and future circumstances which can destroy the substratum of the litigation…At the stage of the application for stay of execution pending appeal the court must ensure that parties fight it out on a level playing ground and on equal footing in an attempt to safeguard the rights and interests of both sides. The overriding objective of the court is to ensure the execution of one party’s right should not defeat or derogate the right of the other. The Court is therefore empowered to carry out a balancing exercise to ensure justice and fairness thrive within the corridors of the court. Justice requires the court to give an order of stay with certain conditions.”

44. On the first condition, Platt, Ag JA (as he then was) in Kenya Shell Limited v Kibiru[1986] KLR 410, at page 416 expressed himself as follows:“It is usually a good rule to see if Order XLI Rule 4 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss in its various forms, is the corner stone of both jurisdictions for granting a stay. That is what has to be prevented. Therefore without this evidence it is difficult to see why the respondents should be kept out of their money”.

45. On the part of Gachuhi, Ag JA (as he then was) at 417 held:“It is not sufficient by merely stating that the sum of Shs 20,380. 00 is a lot of money and the applicant would suffer loss if the money is paid. What sort of loss would this be? In an application of this nature, the applicant should show the damages it would suffer if the order for stay is not granted. By granting a stay would mean that status quo should remain as it were before judgement. What assurance can there be of appeal succeeding? On the other hand, granting the stay would be denying a successful litigant of the fruits of his judgement.”

46. Dealing with the contention that there was no evidence that the 1st Respondent would be able to refund the decretal sum if paid over to the Respondent, Hancox, JA (as he then was) in the above cited case when he expressed himself as follows:“I therefore think in the circumstances that these comments were unfortunate. Nevertheless, having considered the matter to the full, and with anxious care, there is in my judgement no justification whatsoever for holding that there is a likelihood that the respondents will not repay the decretal sum if the appeal is successful and that the appeal will thereby be rendered nugatory. The first respondent is a man of substance, with a good position and prospects. It is true his house was, in his words, reduced to ashes, but I do not take that against him. Both seem to me to be respectable people and there is no evidence that either will cease to be so, in particular that the first respondent will not remain in his job until pensionable age.”

47. Therefore, the mere fact that the decree holder is a man of means does not necessarily justify him being denied the benefit of the fruits of his judgement. The general rule is that the Court ought not to deny a successful litigant of the fruits of his judgement save in exceptional circumstances where to decline to do so may well amount to stifling the right of the unsuccessful party to challenge the decision in the higher Court. In Machira T/A Machira & Co Advocates v East African Standard (No 2) [2002] KLR 63 it was held that:“to be obsessed with the protection of an appellant or intending appellant in total disregard or flitting mention of the so far successful opposite party is to flirt with one party as crocodile tears are shed for the other, contrary to sound principle for the exercise of a judicial discretion. The ordinary principle is that a successful party is entitled to the fruits of his judgement or of any decision of the court giving him success at any stage. That is trite knowledge and is one of the fundamental procedural values which is acknowledged and normally must be put into effect by the way applications for stay of further proceedings or execution, pending appeal are handled. In the application of that ordinary principle, the court must have its sight firmly fixed on upholding the overriding objective of the rules of procedure for handling civil cases in courts, which is to do justice in accordance with the law and to prevent abuse of the process of the court”.

48. Where the allegation is that the respondent will not be able to refund the decretal sum paid in satisfaction of the decree, the burden is upon the applicant to prove that the Respondent will not be able to do so See Caneland Ltd & 2 Others v Delphis Bank Ltd. Civil Application No Nai 344 of 1999.

49. The law, however appreciates that it may not be possible for the applicant to know the respondent’s financial means. The law is therefore that all an applicant can reasonably be expected to do, is to swear, upon reasonable grounds, that the Respondent will not be in a position to refund the decretal sum if it is paid over to him and the pending appeal was to succeed but is not expected to go into the bank accounts, if any, operated by the Respondent to see if there is any money there. The property a man has is a matter so peculiarly within his knowledge that an applicant may not reasonably be expected to know them. In those circumstances, the legal burden still remains on the applicant, but the evidential burden would then, in those circumstances, where the applicant has reasonable grounds which grounds must be disclosed in the application that the Respondent will not be in a position to refund the decretal sum if the appeal succeeds, have shifted to the Respondent to show that he would be in a position to refund the decretal sum. See Kenya Posts & TelecommunicationsCorporation v Paul Gachanga Ndarua Civil Application No Nai 367 of 2001; ABN Amro Bank, NK v Le Monde Foods LimitedCivil Application No 15 of 2002.

50. What amounts to reasonable grounds for believing that the respondent will not be able to refund the decretal sum is a matter of fact which depends on the facts of a particular case. In my view even if it were shown that the respondent is a man of lesser means, that would not necessarily justify a stay of execution as poverty is not a ground for denial of a person’s right to enjoy the fruits of his success. Suffice to say as was held in Stephen Wanjohi v Central Glass Industries Ltd. Nairobi HCCC No. 6726 of 1991, financial ability of a decree holder solely is not a reason for allowing stay; it is enough that the decree holder is not a dishonourable miscreant without any form of income.

51. In this case, however, the decree sum is Kshs 830,000. 00 with costs. It is contended that the subject of the application is a monetary decree and that the Respondent has not demonstrated her means and how she will be able to refund the same if released to her. It is now trite that stay can be granted even in monetary decrees since Order 42 rule 6 recognises that there may exist sufficient cause even in such decrees. Where execution of a money decree is sought to be stayed, in considering whether the applicant will suffer substantial loss, the financial position of the applicant and that of the respondent becomes a crucial issue. The court cannot shut its eyes where it appears the possibility of the respondent refunding the decretal sum in the event that the applicant is successful in his appeal is doubtful. The court has to balance the interest of the applicant who is seeking to preserve the status quo pending the hearing of the appeal to ensure that his appeal is not rendered nugatory and the interest of the respondent who is seeking to enjoy the fruits of his judgement. In other words, the court should not only consider the interest of the applicant but has also to consider, in all fairness, the interest of the respondent who has been denied the fruits of his judgement. See Attorney General v Halal Meat Products LtdCivil Application No. Nai. 270 of 2008; Kenya Shell Ltd v Kibiru & Another (supra); Mukuma v Abuoga [1988] KLR 645.

52. As was stated by Kuloba, J in Machira T/A Machira & Co Advocates v East African Standard(No 2) [2002] KLR 63:“to be obsessed with the protection of an appellant or intending appellant in total disregard or flitting mention of the so far successful opposite party is to flirt with one party as crocodile tears are shed for the other, contrary to sound principle for the exercise of a judicial discretion. The ordinary principle is that a successful party is entitled to the fruits of his judgement or of any decision of the court giving him success at any stage. That is trite knowledge and is one of the fundamental procedural values which is acknowledged and normally must be put into effect by the way applications for stay of further proceedings or execution, pending appeal are handled. In the application of that ordinary principle, the court must have its sight firmly fixed on upholding the overriding objective of the rules of procedure for handling civil cases in courts, which is to do justice in accordance with the law and to prevent abuse of the process of the court”.

53. It is not sufficient to merely state that the decretal sum is a lot of money and the applicant would suffer loss if the money is paid. In an application of this nature, the applicant should show the damage it would suffer if the order for stay is not granted since by granting stay would mean that the status quo would remain as it were before the judgement and that would be denying a successful litigant of the fruits of his judgement which should not be the case if the applicant has not given to the court sufficient cause to enable it to exercise its discretion in granting the order of stay. SeeKenya Shell Ltd v Benjamin Karuga Kibiru and Another(supra).

54. In this case the Applicant averred that the Respondent would be incapable of refunding the decretal sum if paid over to her. The Respondent in her replying affidavit did not respond to this allegation at all. The evidence on record does not reveal her source of income. In fact according to her evidence, her source of income was the deceased. In light of the foregoing, I find that the applicant has proved that substantial loss is likely to be occasioned to him if the whole of the decretal sum is released to the Respondent.

55. The next issue for consideration is the issue of security. It is true that under Order 42 rule 6 aforesaid, the applicant is required to offer security for the due performance of the decree and the Court is entitled to take into account the fact that no such security has been offered in deciding an application thereunder. However, as already stated above the Court must similarly consider the overriding objective and balance the interest of the parties to the suit. The law is that where the applicant intends to exercise its undoubted right of appeal, and in the event it were eventually to succeed it should not be faced with a situation in which it would find itself unable to get back its money. Likewise the respondent who has a decree in his favour should not, if the applicant were eventually to be unsuccessful in its intended appeal, find it difficult or impossible to realize the decree. This is the cornerstone of the requirement for security. The issue of adequacy of security was dealt with by the Court of Appeal in Nduhiu Gitahi v Warugongo [1988] KLR 621; 1 KAR 100; [1988-92] 2 KAR 100 where the Court of Appeal expressed itself as follows:“The process of giving security is one, which arises constantly. So long as the opposite party can be adequately protected, it is right and proper that security should be given in a way, which is least disadvantageous to the party giving the security. It may take many forms. Bank guarantee and payment into court are but two of them. So long as it is adequate, then the form of it is a matter, which is immaterial. In an application for stay pending appeal the court is faced with a situation where judgement has been given. It is subject to appeal. It may be affirmed or it may be set aside. The court is concerned with preserving the rights of both parties pending that appeal. It is not the function of the court to disadvantage the defendant while giving no legitimate advantage to the plaintiffs. It is the duty of the court to hold the ring even-handedly without prejudicing the issue pending the appeal. For that purpose, it matters not whether the plaintiffs are secured in one way rather than another. It would be easier for the defendants or if for any reason they would prefer to provide security by a bank guarantee rather than cash. There is absolutely no reason in principle why they should not do so…The aim of the court in this case was to make sure, in an even-handed manner, that the appeal would not be prejudiced and that the decretal sum would be available if required. The respondent is not entitled, for instance, to make life difficult for the applicant, so as to tempt him into settling the appeal. Nor will either party lose if the sum is actually paid with interest at court rates. Indeed in this case there is less need to protect the defendant because nearly half the sum will have been paid and the balance was at one stage open to negotiation to reduce it”.

56. In my view, the chances of success of the intended appeal ought not to take centre stage in an application for stay of execution by the High Court of a decision of the same Court pending an intended appeal to the Court of Appeal. To ask the court to determine an application for stay of its orders based on the chances of success of an intended appeal would amount to asking the same court to interrogate its decision an action which in my view is not contemplated under Order 42 rule 6 of the Civil Procedure Rules. The Court of Appeal, however, being a Court of superior jurisdiction is perfectly entitled, in an application for stay of execution of a decision of the High Court pending an appeal to that court to consider the chances of success of the intended appeal. Similarly, it is my view that where the High Court is hearing an application for stay of execution of a decision of a subordinate court pending an appeal to the High Court, the latter is perfectly entitled to consider the chances of success of the intended appeal.

57. While I appreciate that in an application for stay pending appeal, it is permitted for the applicant to disclose the nature of his intended appeal so that the Court satisfies itself that in determining whether or not to exercise its discretion in favour of the applicant, it is not doing so on frivolous grounds, under Order 42 rule 6 of the Civil Procedure Rules, it is not a condition for grant of stay that the applicant satisfies the Court that his appeal or intended appeal has overwhelming chances of success. In my view the omission to include such a condition is for good cause. It is in my view meant to insulate the Court from which an appeal is preferred from the embarrassment of holding a mini-appeal as it were. Accordingly, whereas the Court of Appeal is in a better position to gauge the chances of success of an appeal or intended appeal, this Court in an application seeking stay of execution of its decision pending an appeal to the Court of Appeal is not enjoined to consider such condition. In fact, it would be highly undesirable to do so, though it may superficially make reference to the grounds of the intended appeal. This was the position adopted inUniversal Petroleum Services Limited v B P Tanzania Limited [2006] 1 EA 486 where the Court held that:“The granting or otherwise of an order of stay of execution under rule 9(2)(b) is at the discretion of the court and in the exercise of that judicial discretion the court as and where is relevant considers a number of factors, notably, whether the refusal to grant stay is likely to cause substantial and irreparable injury or loss to an applicant, whether the injury or loss cannot be atoned by damages, balance of convenience, and whether prima facie the intended appeal has likelihood of success. Above all, further to considering the above factors the court takes into account the individual circumstances and merits of the case in question…At this stage one has to be careful not to pre-empt the pending appeal and for that reason, the court has to discourage a detailed discussion of the weaknesses or otherwise of the decision intended to be impugned on appeal… There is also a danger in saying or making a finding that an appeal has an overwhelming chances of success.”

58. In Mangungu v National Bank of Commerce Ltd [2007] 2 EA 285, the Court expressed itself on the issue as follows:“Generally the merits of a party’s case in a stay application is not a particularly relevant matter for consideration at this stage. Although it is true that the Court under rule 9(2)(b) has discretion to stay execution, but only on grounds which are relevant to a stay order. Whether or not the appeal has good chances of success is a matter, which should be raised in the appeal itself. The correctness of the judgement should not be impugned in an application for stay of execution save in very obvious cases such as lack of jurisdiction.”

59. Accordingly, while I do not intend to make any finding with respect to the chances of success of the intended appeal, it is clear that no evidence as adduced by the Applicant before the trial court. As the intended appeal being a second appeal and is limited to matters of law, it is unlikely that the concurrent findings of fact will be an issue before the Court of Appeal.

60. As regards the nature of the order sought to be stayed, I agree that ordinarily courts do not stay negative orders. In this case however, this Court not only dismissed the appeal but also corrected an error made by the trial court hence made a positive order in its award.

61. Accordingly, I find that this is a mater in which stay ought to be granted on conditions.

62. Taking all relevant factors into account and in order not to render the intended appeal illusory while at the same time securing the interests of the successful plaintiff I grant a stay of execution of the decree herein pending the intended appeal on condition that the Applicant pays to the Respondent half of the judgement sum and deposits the other half in joint interest earning account in the names of the advocates for the parties herein in Kenya Commercial Bank, Machakos. The said conditions to be complied with within 30 days from the date of this ruling and in default the application shall be deemed to have been dismissed with costs and the plaintiffs will be at liberty to execute. For avoidance of doubt part or the whole sum already deposited in Court may be used to satisfy the conditions imposed herein.

63. The costs of the application are awarded to the Respondent in any event.

64. It is so ordered.

G V ODUNGAJUDGERULING READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 6TH DAY OF OCTOBER, 2022M W MUIGAIJUDGEDelivered the presence of: