[2022] KEHC 10171 (KLR)

Mwangi v Kinyeru & another ((Suing as the Legal Administrators of the Estate of Samuel Githinji Kinyeru (Deceased)) (Miscellaneous Application E554 of 2021) [2022] KEHC 10171 (KLR) (Civ) (8 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10171 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Miscellaneous Application E554 of 2021

JK Sergon, J

July 8, 2022

Between

Danson Mwangi

Applicant

and

Lucy Njoki Kinyeru

1st Respondent

Harun Gathiga Kinyeru

2nd Respondent

(Suing as the Legal Administrators of the Estate of Samuel Githinji Kinyeru (Deceased)

Ruling

1. The appellant/applicant in this instance has brought the Notice of Motion dated 15th November 2021 supported by the grounds set out in its body and the facts stated in the affidavit of Ebby Wanjala. The applicant sought for the substantive order for stay of execution of the judgment/decree in Milimani CMCC no. 7648 of 2018 and warrants and proclamations issued by Zasha Auctioneers dated 21st October, 2021 pending the hearing and determination of the appellant’s intended appeal.

2. In opposing the said Motion, the respondents filed the replying affidavit of Lucy Njoki Kinyeru dated 24th November 2021.

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

4. A brief background of the matter is that the respondents instituted a suit against the appellant, vide the plaint dated 28th August, 2018 and sought for general damages and special damages of Kshs.134,475/= arising out of road traffic accident.

5. Upon hearing the parties, judgment was delivered on 25th June 2021 in favour of the respondents who were awarded an aggregate sum of Kshs.2,058,759/= as damages plus costs of the suit and interest at court rates. Being aggrieved by the aforementioned decision, the applicant have decided to appeal to this court against the lower court’s decision.

6. In her affidavit filed in support of the motion dated 30/11/2021, Ms. Ebby Wanjala stated that the applicant is exposed as the respondents might execute the said judgment anytime as the warrants issued on 15th November 2021 are still in force.

7. The applicant is apprehensive that if the respondents are paid they may deal with the same in a manner prejudicial to the applicant and if the appeal is successful he might not be able to recover the same from the respondents as they have not disclosed nor furnished the court with any documentary evidence to prove their financial standing.

8. The applicant avers that unless the stay of execution is granted, the respondents will execute the said judgment, rendering the applicant's appeal nugatory, and causing him irreparable loss and damage if the respondents proceed to sell the applicant's proclaimed properties, which include a car and various household items.

9. In response, Ms. Lucy Njoki Kinyeru stated that after several months of trying to get the applicant to satisfy the decree, they instructed their lawyers to engage the services of auctioneers to execute the judgment.

10. The respondents further stated that the alleged intended appeal is therefore an afterthought intended to deny them the benefit of their judgment more to the detriment of the deceased’s children.

11. The respondents avers that any further delay in this matter through these unwarranted applications does not only amount to abuse of process but is also prejudicial to the children, whose lives and education are at stake following the death of their father who was their breadwinner.

12. The guiding provision in considering an application seeking an order for a stay of execution is Order 42, Rule 6(2) of the Civil Procedure Rules which sets out the following conditions in determining an application for stay:a)The application should have been brought without unreasonable delay;b)The applicant must demonstrate the substantial loss to be suffered; andc)There must be provision of security for the due performance of the decree or order being appealed against.

13. On the condition of substantial loss, which is the cornerstone in an application for stay. The appellant/applicant in this matter avers that he will suffer irreparable loss and damage if the respondents’ proceeds to sell the applicant’s proclaimed properties being a motor vehicle and assorted household items.

14. The applicant is apprehensive that if the decretal amount is paid to the respondent, the likelihood of recovering the amount from the respondent should the appeal succeed is slim.

15. 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…”

16. The respondents further stated she has been suffering to care for the children of the dead since he passed away and needs the money to be able to support them. He was their breadwinner. This is a blatant sign that if the appeal is successful, the respondents won't be able to pay the applicant.

17. 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 he stands to suffer substantial loss if the order for a stay of execution is not granted.

18. A perusal of the memorandum of appeal shows that the applicant is appealing against the quantum of damages.

19. 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.

20. As In Harit Sheth Advocate -vs- Shamas Charania– Civil Appeal No. 68 of 2008, this Court held:-“The principal aims of the overriding objective include the need to act justly in every situation; the need to have regard to the principle of proportionality and the need to create a level playing ground for all the parties coming before the courts by ensuring that the principle of equality of arms is maintained and that as far as it is practicable to place the parties on equal footing.”

21. Under the provision of security for the due performance of the decree or order, the applicant stated that they are ready and willing to provide security by way of a bank guarantee. In retort, the respondents proposes that three quarters of the decretal sum be paid to him while the remaining be deposited in a joint interest earning account in the names of both parties advocates.

22. In the end therefore, the Motion dated 15th November, 2021 is found to be meritorious and it is allowed, therefore giving rise to a grant of the following orders:i.There shall be an order for stay of execution of the judgment delivered on 25th June, 2021 on the condition that the applicant deposits half the decretal sum in an interest earning account to be held in the joint names of the parties’ advocates and or firm of advocates within 30 days from today, failure to 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 8TH DAY OF JULY, 2022. ……………………J. K. SERGONJUDGEIn the presence of:……………………………. for the Applicant……………………………. for the Respondents