[2025] KEHC 3787 (KLR)

Mwangi & another v Macharia & another (Civil Appeal E808 of 2024) [2025] KEHC 3787 (KLR) (Civ) (27 March 2025) (Ruling)

Neutral citation: [2025] KEHC 3787 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E808 of 2024

JN Mulwa, J

March 27, 2025

Between

Ruoho John Mwangi

1st Applicant

Simon Kabue Kimani

2nd Applicant

and

Cynthia Muthoni Macharia

1st Respondent

Lucy Njoki Ndung’u

2nd Respondent

Ruling

1. The Applicants by their motion dated 15/7/2024 against the Respondents sought ORDERS inter alia:a.Spentb.Spent.c.That pending hearing and determination of the appeal, there be a stay of execution of the judgment, decree and all other consequential orders arising from the judgment delivered on 01/07/2024 in Nairobi Milimani CMCC No. E8548 of 2021. d.That the costs of the motion and other costs abide by the outcome of the appeal.

2. The motion is grounded upon provisions of Order 42 Rule 6, and Order 51 Rule 1 of the Civil Procedure Rules (CPR) and supported by an affidavit sworn by the 1st Applicant. The gist of the deposition is that judgment was delivered in favour of the 1st Respondent on 01/07/2024 and being aggrieved by the same the Applicants preferred this appeal; and that there being no stay orders against execution of the decree, they stand to suffer substantial loss as their property may be attached and sold.

3. The Applicants state that they are willing to give security for the due performance of the decree as shall be directed by the Court and that the motion has been lodged without unreasonable delay.

4. The 1st Respondents oppose the motion by way of a replying affidavit arguing that the motion lacks merit and that she stands to suffer prejudice without an order directed at the Applicants transferring the already deposited sum of Kshs. 1,000,000/- in her favour, as she has been impeded from realizing the fruits of the lower Court judgment.

5. The 2nd Respondent did not participate in the instant proceedings.

6. Before addressing the crux of the matter, it warrants mentioning that on presentation of the instant motion ex parte on 16/7/2024, this Court granted a conditional stay of execution order subject to the Applicants depositing in Court security to the tune of Kshs. 1,000,000/- within thirty (30) days of the aforestated date. The Applicants duly complied with this Court’s directive on 18/07/2024.

7. Order 42 Rule 6 of the CPR provides that: -“(1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of 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 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”.

8. From the said provisions, it is clear that in order to succeed in an application for stay of execution, an applicant must demonstrate that substantial loss may result unless the order of stay is issued; that the motion seeking stay pending appeal has been brought without undue delay; and must give security for the due performance of any decree or order that may ultimately be found to be binding on the applicant.

9. Further, the test on substantial loss and or prejudice likely to be occasioned to a party, where the decree sought to appealed is a money decree. In that respect, the applicant is obligated to demonstrate that there might be apparent difficulty by the Respondent in paying, or loss of money if payment should the appeal be successful. as rendered in the case of Kenya Shell Ltd v Kibiru & Another [1986] KLR 410.

10. Here, there is no dispute that the Applicants moved without any delay to file the instant motion, given the fact that the impugned judgment of the lower Court was delivered on 01/07/2024 and the instant motion filed on 15/07/2024. On substantial loss, the Applicants have asserted the apprehension that should the 1st Respondent proceed with execution and the appeal succeed there is a likelihood the latter would not be in a position to reimburse the said proceeds of execution.

11. It is well settled that where the applicant expresses such reasonable fears, the evidential burden of proof shifts to the respondent to controvert the same by way of affidavit evidence as that is a matter which is peculiarly within his or her knowledge, as held in the case of National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another [2006] eKLR.

12. On the matter of security, the Applicants have expressed willingness to offer security for the order of stay of execution being sought. However, as earlier noted the Applicants had complied with this Court’s interim orders on stay of execution. The 1st Respondent has nevertheless maintained that the said funds already deposited in Court ought to be released to her in order to realize the fruits of successful litigation. In Nduhiu Gitahi & Another v Anna Wambui Warugongo [1988] 2 KAR, the Court cited with approval the decision of Sir John Donaldson M. R. in Rosengrens -Vs- Safe Deposit Centres Limited [1984] 3 ALLER 198 wherein it was succinctly stated that: -“We are faced with a situation where a judgment has been given. It may be affirmed, or it may be set aside. We are concerned with preserving the rights of both parties pending that appeal. It is not our function to disadvantage the Defendant while giving no legitimate advantage to the Plaintiff……It is our duty to hold the ring even-handedly without prejudicing the issue pending the appeal…”

13. With the totality of the above, this Court has taken the liberty of perusing the memorandum of appeal and notes that it challenges both issues of liability and quantum. It is trite that the arguability of an appeal is not one of the preconditions for granting an order of stay pending appeal under Order 42 Rule 6 of the CPR. The court also notes that the 1st Respondent has not demonstrated to the court her ability to repay the decretal sum of Kshs. 3,634,063. 00 should the appeal be successful and that at the time of the accident having been a fare-paying passenger in the Appellants motor vehicle, she contributed zero liability to the causation of the accident.

14. In light of above the Court is persuaded to allow Applicants motion on condition that-;An order of stay of execution of the trial court's judgment delivered on 01/07/2024 is granted pending hearing and determination of the appeal upon the following terms-:a.That, Kshs. 500,000/= out of the sum of Kshs.1,000,000/- deposited in Court as security shall be released to the 1st Respondent through her Advocates and the balance of Kshs.500,000/= thereof shall remain so held by the court pending hearing and determination of the appeal.b.The appellants shall file the Record of Appeal within 60 days of this ruling.c.The appeal shall be listed for directions before the Deputy Registrar on 22/5/2025. d.Costs of this application shall abide by the outcome of the Appeal.Orders accordingly.

DELIVERED DATED AND SIGNED AT NAIROBI THIS 27TH DAY OF MARCH, 2025. ........................JANET MULWAJUDGE