[2023] KEHC 24379 (KLR)

Mwaniki v Shamola & another (Suing as Legal Representative of the Estate of Jane Khavali) & 3 others (Civil Appeal E006 of 2023) [2023] KEHC 24379 (KLR) (31 October 2023) (Ruling)

Neutral citation: [2023] KEHC 24379 (KLR)

Republic of Kenya

In the High Court at Vihiga

Civil Appeal E006 of 2023

JN Kamau, J

October 31, 2023

Between

Ezekiel Mwaniki

Appellant

and

Jackline Mbalizi Shamola and Kenneth Khalma Karanja (Suing as Legal Representative of the Estate of Jane Khavali)

1st Respondent

Malang Kotik Business Merchants

2nd Respondent

Kelvin Ruto

3rd Respondent

William Komen Somokwo

4th Respondent

Ruling

1. In his undated Notice of Motion application that was filed on 18th April 2023, the Appellant herein sought an order for stay of execution of the Judgment and Decree that was entered on 17th March 2023 in Vihiga CMCC No 185 of 2016 pending the hearing and determination of the Appeal herein.

2. He also sought that there be an order for stay of proceedings in Vihiga CMCC Nos 186 of 2016, 187 of 2016, 188 of 2016, 189 of 2016, 190 of 2016, 191 of 2016, 192 of 2016, 66 of 2017, 67 of 2017 and 62 of 2019 pending the hearing and determination of the appeal herein.

3. The said application was supported by the Affidavit of his advocate, Maureen Tesot, that was sworn on 14th April 2023.

4. The Appellant pointed out that on 15th November 2018, Vihiga CMCC No 185 of 2016 was selected as a test suit for the determination of liability in the aforementioned cases. He contended that he was dissatisfied with the decision the Trial Court delivered on 17th March 2023 on the issue of apportionment of liability and wished to appeal against the same.

5. He averred that the Respondents would not be prejudiced if he was granted the orders that he had sought. He further asserted that if the aforementioned matters proceeded before the Appeal herein had been heard and determined, then his Appeal would be rendered nugatory.

6. He pointed out that he was willing to deposit a bank guarantee as a condition of stay pending the hearing and determination of the Appeal herein without any partial payments being made as the issue of liability was contested. He therefore urged this court to grant his application in the interests of justice.

7. On 18th May 2023, Geoffrey O. Okoth swore a Replying Affidavit on behalf of the 1st Respondent herein. The same was filed on 30th May 2023.

8. The 1st Respondent averred that they were awarded a sum of Kshs 546,762/= that was to be shared equally between the Appellant and the 2nd, 3rd and 4th Respondents, liability having been apportioned at 50%-50% against Appellant on one hand and the 2nd, 3rd and 4th Respondents on the other hand.

9. They asserted that the Appellant ought to furnish security and not to bring in, Family Bank Limited, which was a stranger to provide a bank guarantee. It was their contention that while considering the interests of the Appellant herein, the court also ought to consider that they had been denied their fruits of judgment.

10. They added that staying Vihiga CMCC Nos 186 of 2016, 187 of 2016, 188 of 2016, 189 of 2016, 190 of 2016, 191 of 2016, 192 of 2016, 66 of 2017, 67 of 2017 and 62 of 2019 would interfere with the right of litigants to conduct their cases whereas there was no appeal in respect of the said matters before this court. They pointed out that the matters proceeded on quantum and were only awaiting the writing of judgment on quantum.

11. They added that the Appellant had not satisfied the conditions for being granted an order for stay of proceedings and hence urged this court not to grant them the said order.

12. They pointed out that in the event this court was persuaded to allow the said application, then the Appellant ought to deposit the sum of Kshs 273,281/= in a joint interest earning account for advocates of both parties and that party and party costs be assessed within thirty (30) days failing which execution would issue to the 1st Respondent.

13. The Appellant’s Written Submissions were dated 1st July 2023 filed on 11th July 2023 while those of the 1st Respondent were dated 3rd July and filed on 13th July 2023. The Ruling herein is based on the said written submissions which the parties relied upon in their entirety.

Legal Analysis 14. Both the Appellant and the 1st Respondent were agreed on the conditions under which an order for stay of execution pending appeal could be granted under 42 Rule 6(2) of the Civil Procedure Rules, 2010.

15. The Appellant relied on the cases of G.N. Muema p/a Mt View Maternity & Nursing Home v Miriam Maalim Bishar &another [2018] eKLR, Justin Mutunga David v China Road & Bridge Corporation (K) Limited [2019] eKLR and Easy Coach Limited v Patrick Watani Maende & 2others [2018] eKLR to support his case.

16. On their part, the 1st Respondent relied on the case of M/S Machira t/a Machira & Co Advocates v East African Standard (No 2) [2002] KLR 63, Global Tours & Travel Limited HC Winding Up Cause No 43 of 20000 (sic) (eKLR citation not given) and Halsbury’s Law of England 4th Edition Vol 37 at pp 330 and 332 to buttress their arguments.

17. It was evident that the 1st Respondent was not technically opposed to the Appellant’s application for stay of execution pending appeal provided that he deposited his fifty (50%) per cent share of the decretal sum in the sum of Kshs 273,281/= into a joint interest earning account. This court did not therefore find it necessary to analyse whether or not the Appellant had demonstrated that he had met the threshold of being granted an order for stay of execution pending appeal.

18. The question of what form of security the Appellant would provide was pertinent. In the case of G.N. Muema P/A (sic) Mt View Maternity Nursing Home v Miriam Maalim Bishar &another (supra), this court held that security had to be one that a respondent would be able to access with no hardship such as going to court to recover the same in the event an appeal was unsuccessful.

19. As this court had held in previous cases amongst them being Nyanga’u v Mekenye & 2others (Civil Appeal E089 of 2021) [2022] KEHC 11134 (KLR) (2 June 2022) (Ruling), a bank guarantee was not adequate security. There was a possibility of a bank that had given a bank guarantee not honouring the same. Not being a party to a suit would make it difficult for a successful party to enforce any orders he or she might get concerning such a bank guarantee. As the Respondent’s counsel correctly pointed out, the bank that the Appellant herein had proposed, to wit Family Bank Limited, was a stranger to the proceedings herein. This court therefore determined that the security to be furnished herein would be in form of money.

20. The condition for assessment of party and party costs within thirty (30) days was premature as the issue of apportionment of liability was yet to be determined. This court was therefore not persuaded that it should add this extra condition as a pre-requisite before the Appellant herein could be granted an order for stay of execution pending appeal.

21. Turning to the issue of stay of proceedings, this court noted that Vihiga CMCC No 185 of 2016 was selected as a test suit for the determination of apportionment of liability in Vihiga CMCC Nos 186 of 2016, 187 of 2016, 188 of 2016, 189 of 2016, 190 of 2016, 191 of 2016, 192 of 2016, 66 of 2017, 67 of 2017 and 62 of 2019.

22. Whereas this court noted that it would ordinarily not have added value for the Trial court to have proceeded with related matters when the apportionment of liability in the test case was contested and was yet to be determined by this court, this court was nonetheless persuaded that the Trial Court could proceed to determine the issue of quantum in Vihiga CMCC Nos 186 of 2016, 187 of 2016, 188 of 2016, 189 of 2016, 190 of 2016, 191 of 2016, 192 of 2016, 66 of 2017, 67 of 2017 and 62 of 2019 on three (3) grounds.

23. The first ground was that the lower court file was yet to be forwarded to this court for it to proceed with the hearing and determination of the Appeal herein. The second ground was that the Trial Court was awaiting to write judgments on the issue of quantum in all those files. In view of transfer of judicial officers from time to time, it was prudent that the Trial Court that was handling the matters deal with them conclusively.

24. Having said so, for the sake of good order and to avoid execution proceedings being commenced haphazardly in different matters, this court found it prudent to pronounce itself on the fate of Vihiga CMCC Nos 186 of 2016, 187 of 2016, 188 of 2016, 189 of 2016, 190 of 2016, 191 of 2016, 192 of 2016, 66 of 2017, 67 of 2017 and 62 of 2019 pending the hearing and determination of the Appeal herein.

Disposition 25. For the foregoing reasons, the upshot of this court’s ruling was that the Appellant’s undated Notice of Motion application that was filed on 18th April 2023 was merited and the same be and is hereby allowed in terms of Prayers Nos (3) and (5) therein on the following conditions:-1. That there shall be a stay of execution of Judgment that was delivered by Hon Rose Ndombi (PM) on 17th March 2023 in Vihiga PMCC No 185 of 2016 pending the hearing and determination of the Appeal herein on condition the Appellant shall deposit the sum of Kshs 273,281/= into an interest earning account in the joint names of his advocates and the advocates for the 1st Respondent herein within forty five (45) days from the date of this Ruling.2. For the avoidance of doubt, in the event, the Appellant shall default on Paragraph 25(1) hereinabove, the conditional stay of execution shall automatically lapse3. For further avoidance of doubt, in the event the Appellant will have complied with Paragraph 25(1) hereinabove, pending the hearing and determination of the Appeal herein, execution proceedings shall not be commenced in Vihiga CMCC Nos 186 of 2016, 187 of 2016, 188 of 2016, 189 of 2016, 190 of 2016, 191 of 2016, 192 of 2016, 66 of 2017, 67 of 2017 and 62 of 2019 notwithstanding that judgments on quantum will have already been delivered by the Trial Court.4. The Appellant be and is hereby directed to file and serve his Record of Appeal within one hundred and twenty (120) days from the date of this Ruling.5. This matter will be mentioned on 1st February 2024 to confirm compliance and/or for further orders and/or directions.6. Costs of the application herein shall be in the cause.7. Either party is at liberty to apply.

26. It is so ordered.

DATED AND DELIVERED AT VIHIGA THIS 31ST DAY OF OCTOBER 2023J. KAMAUJUDGE