[2022] KEHC 15268 (KLR)

Muturi & another v SM (Suing as the Father and next of Friend of FN alias FM-Minor) (Civil Appeal E837 of 2021) [2022] KEHC 15268 (KLR) (Civ) (11 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15268 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E837 of 2021

JK Sergon, J

November 11, 2022

Between

Sammy Njoroge Muturi

1st Appellant

Timothy Mutinda

2nd Appellant

and

SM (Suing as the Father and next of Friend of FN alias FM-Minor)

Respondent

Ruling

1. The appellants/applicants in this instance has brought the notice of motion dated August 15, 2022 supported by the grounds set out in its body and the facts deponed in the supporting affidavit. The applicants sought for the substantive order for stay of execution of the judgment delivered on November 26, 2021 pending the hearing and determination of the appellants’ appeal.

2. The respondent opposed the motion by filing the replying affidavit sworn by the advocate, Musili Mbiti on September 15, 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 as seen in the record is that the respondent instituted a suit against the applicants and sought for general damages and special damages of Kshs 5,400/= together with costs arising from a road accident .

6. Upon hearing the parties, the court vide the judgment delivered on November 26, 2021 awarded the respondent an aggregate sum of Kshs 2,335,524/= as damages plus costs of the suit and interest at court rate. Being aggrieved by the aforementioned decision the applicant appealed to this court against the lower court’s judgment.

7. 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.

8. Under the first condition touching on length of delay, while it is apparent from the record that no copy of the impugned ruling was availed to this court, the parties are in agreement that the impugned judgment was delivered on November 26, 2021 which is close to seven (7) months prior to the filing of the motion. In my mind, while there has clearly been a delay in filing the motion, I do not find the delay to be inordinate.

9. The second condition touches on substantial loss to be suffered by the applicant.

10. The applicants on their part are apprehensive that unless this application is heard and stay of execution is granted, the appellants will suffer irreparable loss and damage.

11. On the other hand, the respondent avers that the applicants have not demonstrated that substantial loss would be occasioned if stay is not granted as they have stayed 9 months without the same.

12. The applicants aver that the trial court's 30-day stay period has expired, the respondent as the decree holder may proceed and levy execution against them, the judgment is for a significant sum of money, and the applicants are concerned that if the respondent receives payment, he may handle the money in a way that is unfair to them and that, if the appeal is successful, he might not be able to recover it from the respondent.

13. The question on who has the burden of proof on the issue of refund of the decretal sum was discussed by the Court of appeal in the case of National Industrial Credit Bank Ltd v Aquinas Francis Wasike & another [2006] eKLR when it held that:“Once an applicant expresses a reasonable fear that a respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the respondent to show what resources he has since that is a matter which is peculiarly within his knowledge…”

14. In the absence of anything to ascertain the respondent’s financial capacity to refund the decretal sum, I am satisfied that the applicant has reasonably demonstrated that it will stand to suffer substantial loss if the order for a stay of execution is not granted.

15. Under the final condition which is the provision of security for the due performance of the decree or order, the applicants state that its insurance is willing and able to furnish the court with a bank guarantee as security to the court.

16. On the other hand the respondent is of the view that the applicant should be ordered to pay them two thirds of the decretal sum and deposit the other third in affixed deposit joint interest earning account of both advocates failure to which execution to proceed.

17. In making an order for the provision of security, this court must balance the interest of the parties. In the present instance, it is noteworthy that the respondent has not shown any pressing need that would require payment of part of the decretal amount to him at this stage.

18. In the end therefore, the motion dated August 15, 2022 is found to be meritorious and hence it is allowed in terms of the following orders:i.There shall be an order for stay of execution of the judgment and decree issued on November 26, 2021 pending the hearing and determination of this appeal on the condition that the applicants deposit the half the decretal sum in an interest earning account in the joint names of the advocates or firms of advocates within 45 days from the date of this ruling in default of which the stay order shall lapse.ii.Costs of the motion shall abide the outcome of the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 11TH DAY OF NOVEMBER, 2022. ……………………….J K SERGONJUDGEIn the presence of:……………………………. for the 1st appellant.................................... for the 2nd appellant……………………………. for the respondent