[2017] KEHC 1683 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CIVIL APPEAL NO. 123 OF 2017

MUTUKU KYULU.................................................................................APPELLANT

VERSUS

GRACE KASELE KITHOKOO...................................................1ST RESPONDENT

NYEVU SAMUELaliasSAMUEL MUTINDA SAMUEL.........2ND RESPONDENT

RULING OF THE COURT

1. The Appellant has filed a Notice for Motion dated 28/09/2017 seeking orders that:-

(i) That this court be pleased to grant stay of execution of the judgement delivered on 14/08/2017 in Machakos CMCC NO. 213 OF 2014 - GRACE KASELE KITHOKOO AND ANOTHER =VS= MUTUKU KYULI AND 2 OTHERS pending the determination of the appeal herein.

(ii) That the costs of the Application be in the cause.

2. The Application is based on the grounds set out on the body of the Application and the supporting affidavit of the Appellant Mutuku Kyuli sworn on even date. He averred that he is aggrieved by the judgement of the lower court and in which he has lodged an appeal with high chances of success. That the Respondent intends to execute the judgment which will occasion him substantial loss in that the Respondent who is a person of straw will be unable to refund the decretal sums in the event the appeal success. That the Applicant has filed the Application timeously and further that he is willing to offer security in the form of a bank guarantee for the due performance of the decree as may ultimately be binding on him.

3. In response, the 1st Respondent filed a replying affidavit sworn on 16/10/2017 in which she deposed that no evidence of substantial loss will be suffered if stay is not granted: that the Appellant has not proved security for costs as a show of good faith and that the bank guarantee relied on by Applicant is problematic as far as recovery proceedings are concerned in the event the Appeal fails: that the Applicant should at least pay half of the decretal sums plus costs and the remainder thereof be deposited into an interest earning account in the names of both advocates for the parties: that the appeal has no chances of success and therefore execution should be allowed to proceed.

4. Learned counsels filed written submissions. It was submitted for the Appellant/Applicant that the appeal has high chances of success as the issue of liability had been misinterpreted by the trial court and further that the Appellant stands to suffer substantial loss if stay is not granted as the Respondent is a person of straw from whom no money can be recovered in the event the appeal succeeds as she has not disclosed her station in life. It was finally submitted for the Applicant that the present Application has been made without unreasonable delay and that he is ready to provide a bank guarantee for the due performance of such order or decree as may ultimately be binding on him.

It was submitted for the Respondent that the Applicant has not presented any evidence of substantial loss to be suffered in the event stay is not granted. The Respondent rubbished the Applicant’s assertion that the Respondent is a person of straw yet he is not privy to her financial means and to counter the same, it was submitted that the Respondent was a lady of means as she is employed in the private sector. It was also submitted that the Application was filed with undue delay as Applicant moved the court after the stay period granted by the lower court had been exhausted. Finally it was submitted for the Respondent that the appeal herein has the chances of success since the trial court properly analyzed the evidence and arrived at a considered judgement and therefore the Application herein lacks merit, vexatious and misleading which should be dismissed. In the alternative, it was submitted that should this court be inclined in the unlikely event to grant the Application, then half of the decretal sums should be paid to the Respondent while the balance should be deposited in a joint interest earning account in the names of both advocates.

5. I have considered the Application and the rival affidavits as well as the submissions of learned counsels. This Application is based on order 42 Rule 6 (1) and (2) of the Civil Procedure Rules which provides as follows:-

“ 6(1)No appeal or second appeal shall operate as a stay of 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 for 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: to consider such application and to make such order thereon as may deem it 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 orders set aside.

(2) No order for stay of execution shall be made under sub rule (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.”

6. The above rule has been considered and reiterated by the courts in several cases. For instance in the case of PETER ONDANDE T/A SPREAWETT CHEMIST VS JOSEPHINE WANGARI KARANJA [2006] eKLR the court held thus:

“The issue for determination by this court is whether the Applicant has established a case to enable this court to grant him the order of stay of execution; it must be satisfied that substantial loss may result to the Applicant if stay is not granted. Further, the Applicant must have filed the Application for stay of execution without unreasonable delay. Finally the Applicant must provide such security as may ultimately be binding upon him.”

7. In the instant Application, it is noted that the judgement by the lower court was delivered on the 17/08/2017 and the present Application was filed on the 4/10/2017 which is about one and half months from the date of delivery of judgement. I find there was no unreasonable delay on the part of the Appellant/Applicant while filing the present Application.

8. On substantial loss, the Applicants contention is that he is apprehensive that the Respondent will be unable to refund the decretal sum in the event the appeal succeeds. The Applicant averred in his affidavit that the Respondent is a person of straw whose financial means is unknown and that if the appeal succeeds in the end she would not be in a position to refund the sums. I find that once an Appellant makes such an assertion against a Respondent, the burden must shift upon the Respondent to show what resources he or she has since the issue of his or her financial standing is a matter within his or her knowledge. The Respondent in her replying affidavit did not mention anything to do with her financial wherewithal but only dwelt on the strength of her evidence tendered before the trial court. The Respondent was under a duty to respond on the aspect of her financial means. It was not proper for the same to be raised by her counsel in submissions. It was necessary for the Respondent to depone to the issue in her replying affidavit. In the case of ILRAD VS KINYUA [1990] KLR 403 the Court of Appeal held as follows:

“We have considered what Mr. Sehimi has said. However, we must observe that the onus was upon the Respondent to rebut by evidence that the claim that the intended appeal if successful would be rendered nugatory on account of his (Respondent’s) alleged impecunity.”

The Applicant herein first threw the first salvo by claiming that the Respondent would not be able to refund back the decretal sums in the event the appeal succeeds. It was therefore incumbent upon the Respondent to rebut the same by discharging the evidential burden and proceed to show what resources she has since that was a matter which was peculiarly within her knowledge. I find the Respondent failed to rebut the Applicant’s averments and which therefore bolstered the Applicant’s claim that he will suffer substantial loss if the Respondent would not refund the sums in the event of success of the appeal.

One other issue that has been raised by the Respondent is that the Applicant’s Appeal has no chance of success. Indeed the Applicant has filed a Memorandum of Appeal in which he has raised about six grounds. The Appeal is yet to be set down for hearing and therefore the merits or demerits of the same is yet to be determined. It is too early at this juncture to establish whether the appeal will succeed and it shall have to await the trial. In any event order 42 Rule 6(2) of the Civil Procedure Rules does not provide as a condition for grant of stay of execution that an Applicant must demonstrate that his or her appeal has high chances of success. Hence the Respondent’s criticisms on the Appeal at this stage is premature and she should await the hearing of the Appeal.

9. In view of the aforegoing, I find the Appellant has satisfied the requirements of Order 42 Rule 6 of the Civil Procedure Rules and merits a grant of stay of execution pending the hearing of this appeal. The Appellant’s Application dated 28/09/2017 is allowed on the following terms:-

(a) The Appellant to deposit the entire decretal into an interest earning account in the joint names of Advocates for the parties within the next thirty (30) days from the date hereof.

(b) In default execution do issue.

(c) The costs of the Application to abide in the Appeal.

It is so ordered.

Dated, signed and delivered at Machakos this 6thday of December,2017.

.....................................

D. K. KEMEI

JUDGE

In the presence of:

.................................. for the Appellant

....................................for the Respondent

......................................court Assistant