[2022] KEHC 17045 (KLR)

Mwachidete v Mwangumaye (Civil Miscellaneous Application 156 of 2021) [2022] KEHC 17045 (KLR) (7 October 2022) (Ruling)

Neutral citation: [2022] KEHC 17045 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Miscellaneous Application 156 of 2021

MN Mwangi, J

October 7, 2022

Between

Suleiman Mwachidete

Appellant

and

Ayani Nassoro Mwangumaye

Respondent

Ruling

1. There are two applications for determination. The first one is a Notice of Motion dated July 19, 2021 brought under the provisions of Sections 3A, 79G and 95 of the Civil Procedure Act, Cap 21, Order 22 Rule 22, Order 42 Rule 6, Order 50 Rule 6 and Order 51 Rules 1 and 3 of the Civil Procedure Rules, 2010, and all other enabling provisions of the law. The appellant/applicant seeks the following orders-i.Spent;ii.That pending the hearing and determination of this application and the instant appeal, this Honourable Court be pleased to order stay of execution of the judgment delivered on June 25, 2021 by Honourable Sandra Ogot, Senior Resident Magistrate, in Msambweni Senior Resident Magistrate’s Court;iii.Spent;iv.That this Honourable Court be pleased to issue any other orders that it may deem fit, just and expedient in the interests of justice; andv.That the costs of this application be in the cause.

2. The application is supported by an affidavit sworn on July 19, 2021 by Masolia Loveto, the applicant’s Advocate. In opposition thereto, Ayani Nassoro Mwangumaye, the respondent herein on September 9, 2021 filed a replying affidavit sworn on September 8, 2021.

3. On November 16, 2021, the applicant filed another Notice of Motion application dated November 15, 2021 brought under the provisions of Sections 3A, 79G & 95 of the Civil Procedure Act, Cap 21 of the Laws of Kenya, Order 22 Rule 22, Order 42 Rule 6, Order 50 Rule 6 and Order 51 Rules 1 and 3 of the Civil Procedure Rules, 2010, Article 159 of theConstitution of Kenya, 2010 and all other enabling provisions of the law. In the said application, the applicant seeks the following orders -i.Spent;ii.Spent;iii.That pending the hearing and determination of the instant application and the application dated July 19, 2021 and filed in Court on July 26, 2021, this Honourable Court be pleased to order stay of execution of the judgment delivered on June 25, 2021 by Hon Sandra Ogot, Senior Resident Magistrate, In Msambweni Senior Resident Magistrate’s Court Civil Suit No 47 of 2020, Suleiman Mwachidete Versus Ayani Nassoro Mwangumaye;iv.That pending the hearing and determination of the instant application and the Application dated July 19, 2021 and filed in Court on July 26, 2021, this Honourable Court be pleased to order stay of proceedings in declaratory suit filed by the respondent vide Msambweni Civil Suit No E13 of 2021- Ayani Nassoro Mwangumaye Versus Directline Assurance Company Limited;v.Spent;vi.That this Honourable Court be pleased to issue any other orders that it may deem fit, just and expedient in the interest of justice; andvii.That the costs of this application be in the cause.

4. The application is supported by an affidavit sworn on November 15, 2021 by Masolia Loveto, the applicant’s Advocate. In opposition thereto, Ayani Nassoro Mwangumaye, the respondent herein filed a replying affidavit on November 29, 2021 sworn on the same day.

5. On November 30, 2021, this Honourable Court gave directions that both applications would be canvassed by way of written submissions. The applicant’s submissions were filed on January 17, 2022 by the law firm of Kimondo Gachoka & Company Advocates, whereas the respondent’s submissions were filed on February 1, 2022 by the law firm of AN Kamau & Company Advocates.

6. Mr Masolia, learned Counsel for the applicant in his written submissions relied on the case ofRao Jaivirsinthinji t/a Darbar Wholesalers & 3 others v Prudential Drycleaners Ltd [2004] eKLR and stated that stay of execution pending the hearing and determination of an appeal is necessary to safeguard the appellant’s interests although the said right must be balanced against an equally weighty right of the respondent herein, to enjoy the fruits of the judgment delivered in his favour in the lower Court. He further submitted that the applicant has an arguable appeal that raises serious triable issues with high chances of success, thus the need to allow the determination of the application herein on its merit.

7. On the issue of substantial loss, Mr Masolia submitted that the applicant was contesting quantum as awarded by the lower Court since he found the same to have been inordinately high for the injuries sustained by the respondent. He contended that the financial means of the respondent was unknown and to date, he had not demonstrated how he earns a living in order to give this Court the confidence to make an order for the applicant to release half of the decretal sum to him in order for him to enjoy the fruits of the lower Court’s judgment. He stated that if such an order was to be made, it would leave the applicant exposed to loss in the absence of such proof.

8. It was submitted by the applicant’s Counsel that to safeguard the interest of both parties, this Court should allow him to furnish the respondent with security in the form of a Bank Guarantee, through his insurer Directline Assurance Company Limited. Mr Masolia supported his submissions with the case of Westmont Holdings SDN, BHD v Central Bank of Kenya [2017] eKLR.

9. He indicated that upon delivery of judgment by the Trial Court, the applicant filed his Memorandum of Appeal within the prescribed time.

10. Ms Kamau, learned Counsel for the respondent submitted that after judgment has been pronounced by a Court of competent jurisdiction, a stay cannot issue as a matter of course and can only issue if the conditions set out in Order 42 of the Civil Procedure Rules are met. She submitted that the applicant had failed to furnish proof that he would suffer substantial loss in the event that the orders sought were not granted. She relied on the case of Lalji Bhimji Sanghai Builders & Contractors v Nairobi Golf Hotels Kenya Ltd HCCC NO 1900 of 1995cited in Highway Carriers Ltd v Reje Mohamed Reje [2010] eKLR and Broadway Enterprises Limited v Ministry of Housing & Urban Development & 3 others [2018] eKLR.

11. She submitted that the fact that the applicant had alleged that he was willing to provide security should be scorned at since what was annexed as security in the Notice of Motion, was an application for a Bank Guarantee and not the actual Bank Guarantee hence one cannot ascertain whether the applicant will comply with the terms of the Bank and actually secure the Guarantee. She urged this Court not to grant stay of execution in the midst of such uncertainty. Ms Kamau submitted that the applicant does not have an arguable appeal on quantum of damages since the awards made by the Court were made after the Trial Court considered the demeanour of the witness, the injuries sustained by the applicant, the authorities relied on by the Advocates, the passage of time and the incidence of inflation.

12. In addition, she contended that the Memorandum of Appeal was unclear as to whether the appeal is against the whole judgment of the Court or part of it or general damages or the total award made by the Court under different heads, which confirms that the applicant has no arguable appeal. In citing the case of Mary Kina v Menengai Oil Refineries & another [2010] eKLR cited in UAP Provincial Insurance Co v Shiyani Ruda Kanji [2010] eKLR, Ms Kamau expressed the view that the appeal filed by the applicant is not against the whole judgment of the Court but against liability and general damages only, hence there being no appeal against the award of Kshs 94,500/= for special damages and the award of Kshs 175,000/= for future medical expenses, the said amounts ought to be released to the respondent. In addition, she stated that from the applicant’s submissions, he acceded to the fact that an award of Kshs 350,000/= as general damages to the respondent herein would be reasonable. Ms Kamau urged for the said sum of uncontested general damages to be paid out to the respondent.

Analysis And Determination. 13. This Court has considered the applications filed herein, the affidavits filed in support thereof, the replying affidavits by the respondent and the written submissions by Counsel for the parties. The issue for determination is if the applicant should be granted stay of execution of the Judgment delivered on June 25, 2021 by the lower Court. This prayer is sought in the two applications herein. The prayer sought in paragraph (iv) of the application dated November 15, 2021 seeking stay of proceedings in the declaratory suit becomes spent by the delivery of this ruling.

14. In the affidavit filed by the applicant, on July 26, 2021, he deposed that judgment in the Msambweni Magistrate’s Court in Civil Suit No 47 of 2020 was delivered on June 25, 2021 where the applicant was found to be 100% liable and the respondent was awarded Kshs 1,274,000/= as damages, plus costs and interest. The applicant being dissatisfied with the said judgment filed a Memorandum of Appeal dated July 19, 2021 and requested for certified copies of the proceedings as well as the judgment before the Trial Court so as to file his Record of Appeal.

15. The applicant averred that he did not file an application for stay of execution before the High Court immediately as the Memorandum of Appeal was filed within the period prescribed by law and he expected to have the typed proceedings as well as the judgment before the order for stay of execution lapsed in order for him to file his Record of Appeal within time. In the affidavit filed on November 16, 2021, the applicant deposed that there was imminent threat of execution of the judgment by the respondent as he has since filed a declaratory suit against the applicant’s insurer in Msambweni Civil Suit No E113 of 2021 - Ayani Nassoro Mwangumaye v Directline Assurance Company Limited. He further averred that the judgement herein is of a substantial amount and he was apprehensive that if it was paid out to the respondent and the appeal turns out to be successful, the applicant may not be able to recover from the respondent, the amount paid.

16. The respondent in his replying affidavit deposed that the applicant had not demonstrated how he would suffer irreparable loss and damage since the decretal sum is not a substantial amount and in the event the appeal succeeds, he has the capacity and ability to refund the same. He stated that the alleged security offered by the applicant was not an actual Bank Guarantee but an application for a Bank Guarantee, thus this Court should not take the application and memorandum of acceptance as the actual guarantee in the absence of actual confirmation from the bank.

17. The Court’s power to grant an order for stay of execution is discretionary but the said discretion must be exercised judiciously. The principles that govern the grant of on order for stay of execution pending appeal are set out in Order 42 Rule 6(2) of the Civil Procedure Rules, 2010 as hereunder-'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; andb.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.'

18. In Vishram Ravji Halai v Thornton & Turpin [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 42 Rule 6 of the Civil Procedure Rules, 2010 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.

19. When considering an application for stay of execution, this Court must 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. In doing so, more often than not, Courts consider the twin overriding principles of proportionality and equality of arms which are aimed at placing the parties before the Court on equal footing. This Court has a duty to balance the interests of the parties taking into account the fact that the applicant herein has an undoubted right of appeal whereas the respondent has a decree which he should not be obstructed from executing without good reason.

20. This Court has gone through the judgment that was delivered on February 10, 2021 and seen that the Trial Court entered judgment in favour of the respondent against the applicant herein. The respondent was awarded Kshs 94,500/= as special damages, Kshs 1,000,000/= as general damages for pain and suffering and Kshs 179,500/= as costs of future medical expenses. The respondent was also awarded costs of the suit and interest, making a total award of Kshs 1,274,000/=. This Court is of the view that that is not a small amount of money. It was submitted by the applicant’s Counsel that the applicant stands to suffer substantial loss in the event that stay of execution is not granted since the financial means of the respondent is unknown as he had not demonstrated how he earns a living and that he has the ability to refund the money in the event that the appeal succeeds.

21. In Kenya Hotel Properties Limited v Willesden Investments Limited [2007] eKLR, the Court of Appeal stated that Courts have felt that the success of the appeal would not be rendered nugatory if the decree is a money decree so long as the Court ascertains that the respondent is not a 'man of straw' but is a person who, on the success of the appeal, would be able to repay the decretal amount plus any interest to the applicant.

22. On the issue of substantial loss, the Court in the case of Kenya Shell Limited vs Kibiru [1986] KLR 410 considered the meaning of the term substantial loss as hereunder-'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'.

23. In addition, in the case of Victory Construction v BM (a minor suing through next friend one PMM) [2019] eKLR, the Court made the following observation in regard to the issue of substantial loss-'The same position was adopted by Kimaru, J in Century Oil Trading Company Ltd vs Kenya Shell Limited Nairobi (Milimani) HCMCA NO 1561 of 2007 where he stated that:'In considering whether the applicant will suffer substantial loss, the financial position of the applicant and that of the respondent becomes an issue. The court cannot shut its eyes where it appears the possibility is doubtful of the respondent refunding the decretal sum in the event that the applicant is successful in his appeal.'

24. In this application, the applicant did not put forth his current financial position and how the same will be affected in the event that stay is not granted. He contended that he might not be able to recover the decretal sum if paid to the respondent since the decretal sum is a substantial amount. The respondent on the other hand did not demonstrate his financial capacity to this Court by providing financial statements to demonstrate his ability to refund the applicant the money in the event he was successful in the pending appeal. All that the respondent did was to aver that he is capable of paying back the decretal sum in the event that the appeal herein was successful. It is this Court’s finding that in the absence of the assurance by way of an affidavit of means from the respondent, the applicant is likely to suffer substantial loss in the event that stay of execution is not granted.

25. The application herein was filed on July 26, 2021 whereas the judgment by the Trial Court was delivered on June 25, 2021. That is approximately 30 days from the date of the judgment. It is noteworthy that in the said judgment, the Trial Magistrate gave an order for stay of execution for a period of thirty days. I am therefore satisfied that the application herein has been brought without undue delay.

26. The applicant in his affidavit averred that he is ready, willing and able to furnish the Court with a Bank Guarantee from DTB Bank as security. In Focin Motorcycle Co. Limited vs Ann Wambui Wangui & another [2018] eKLR, it was stated that:'Where the applicant proposes to provide security as the Applicant has done, it is a mark of good faith that the application for stay is not just meant to deny the respondent the fruits of judgment. My view is that it is sufficient for the applicant to state that he is ready to provide security or to propose the kind of security but it is the discretion of the Court to determine the security. The Applicant has offered to provide security and has therefore satisfied this ground for stay.'

27. The respondent contended that the appeal is not against the whole judgment by the Trial Court but against liability and general damages only and there being no appeal against the award of Kshs 94,500/= for special damages and the award of Kshs 175,000/= for future medical expenses, the said amount ought to be released to him. The Memorandum of Appeal lists several grounds of appeal against the judgment delivered on June 25, 2021. In the second ground of appeal, the applicant challenges the Trial Magistrate’s assessment of damages. This Court cannot therefore make an order for payment of the award of special damages and costs for future medical expenses to the respondent until the appeal is heard and determined on its merits.

28. This Court’s finding is that the application dated July 19, 2021 is merited and the same is allowed in the following terms-a.That pending the hearing and determination of the appeal herein, there be a stay of execution of the judgment delivered on June 25, 2021 by Honourable Sandra Ogot, Senior Resident Magistrate, in Msambweni Senior Resident Magistrate’s Court Civil Suit No 47 of 2020, Suleiman Mwachidete v Ayani Nassoro Mwangumaye;b.The applicant shall deposit the sum of Kshs 1,274,000/= in a joint interest earning account in the names of the Advocates for the parties herein within 30 days from the date of this ruling. In default thereof, the application shall be deemed to have been dismissed and the respondent shall be at liberty to execute; andc.That costs of this application will abide the outcome of the appeal.

DATED, SIGNED andDELIVERED atMALINDI on this 7thday ofOctober, 2022. Ruling delivered through Microsoft Teams Online Platform.NJOKI MWANGIJUDGEIn the presence of:Mr. Mirembe for the appellant/ applicantMs Tinga h/b for Ms Kamau for the respondentMr. Oliver Musundi – Court Assistant.Page 3 of 3 NJOKI MWANGI, J.