[2022] KEHC 2413 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL APPEAL NO. E767 OF 2021

NAIROBI CITY WATER &

SEWERAGE COMPANY LIMITED.......APPELLANT/APPLICANT

-VERSUS-

DAVID KIMEMIA RUFUS............................................RESPONDENT

RULING

1. The appellant/applicant in this instance has brought the Notice of Motion dated 12th November 2021 supported by the grounds set out in its body and the facts deponed in the supporting affidavit. The applicant sought for the substantive order for stay of execution of the judgment and Order delivered on 29th October, 2021 pending the hearing and determination of the appellant’s Appeal.

2. The respondent opposed the Motion by filing the replying affidavit sworn by respondent, David Kimemia Rufus dated 19th January 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. In brief, on 29th October,2021 the trial court delivered a judgment and issued an Order compelling the Appellant to remove the water meter No.269776199 installed in the Respondent’s premises within 4 days failure to which the Respondent be at liberty to remove the meter.

6. Being aggrieved by the aforementioned decision the applicant appealed to this court against the lower court’s judgment.

7. In his affidavit filed in support of the motion dated 12/11/2021, Mr. Patrick Maina stated that the Appellant is aware of the 14 days for compliance ordered by the Court will lapse leaving them with no legal protection against execution of the order.

8. He avers that the Appellant/Applicant will suffer substantial loss if the Respondent proceeds to remove the meter and demand levied charges while the Appeal is pending yet the Respondent is mandated by law to levy sewerage charges. He further avers that the Appellant/Applicant will not be able to tell the correct amount to charge the Respondent for water and sewerage services if the meter is removed.

9. He stated that the Appellant/Applicant is a reputable company capable of complying with any directions or orders by this court regarding security for due performance of the Order.

10. In response, Mr. David Kimemia Rufus stated that no prejudice can be envisaged in the removal of the said impugned meter as ordered and should the Applicant succeed in the Appeal the same can always be reinstated.

11. He avers that he is not a customer to the applicant as alleged as it does not supply him with any water and he has not developed the suit premises so as to it can be said that there is any effluent discharge flowing from his plot but without his consent the Applicant invaded its private borehole and installed its sewerage meter.

12. He contends that it is absurd for the Applicant to allege that it would suffer any substantial loss by being barred from continuing with its blatant illegality where the Applicant has coerced him and extorted millions of shillings from him over the years unlawfully without any justifiable cause at all.

13. He avers that the Applicant as a show of good faith and seriousness in its Appeal should be ordered to deposit the monies in question unlawfully obtained from the Respondent amounting to Six Million (Kshs.6,000,000/=) in an interest earning joint account held by both lawyers in court pending the hearing of the Appeal.

14. I have considered the grounds stated on the face of the Application plus the facts deponed in the rival affidavits.

15. 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:

i. The application should have been brought without unreasonable delay;

ii. The applicant must demonstrate the substantial loss to be suffered; and

iii.There must be provision of security for the due performance of the decree or order being appealed against.

16. On the first condition, the applicant avers that the Motion has been timeously filed. From my study of the record and the impugned judgment, I note that it was delivered on 29th October, 2021 which is barely a month prior to the filing of the instant Motion. I therefore find that there has been no unreasonable delay in bringing the Motion.

17. Under the second condition on substantial loss, it is apparent from the Motion that the applicant is anxious that unless an order for a stay of execution is granted and the respondent proceeds to remove the meter, then he will demand for a refund of the levied charges while the Appeal is pending as well as the Appellant will not be able to charge the correct amount and that the Respondent may not be able to re –install the meter and pay back monies if the Appeal is successful.

18. The Court of Appeal in the case of Butt v Rent Restriction Tribunal [1979] eKLR held inter alia that in considering an application for a stay of execution, the courts ought to exercise their discretion in a manner that will not render the appeal in question nugatory, if successful.

19. From my study of the grounds featured in the memorandum of appeal, it is apparent that the appeal seeks to determine charges levied with respect to meter whether the Respondent is liable to pay for water and sewerage services or not.

20. 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 substantial justice and violating the applicant’s constitutional right to be heard on its defence in the dispute before the same is conclusively determined.

21. From the foregoing, I am convinced that the applicant has reasonably shown the substantial loss it may suffer should the order for a stay of execution be denied.

22. In respect to the third and final condition, the applicant expressed its willingness to abide by the conditions to be set by this court.

23. In the end therefore, the Motion dated 12th November, 2021 is found to be meritorious and it is allowed, therefore giving rise to a grant of the following orders:

i. An order for stay of execution of the decree and order delivered on 29th October, 2021 on the condition that the applicant deposit ksh. 3m being half the decretal sum in court within 30 days from today, failing 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 11th day of February, 2022.

…….….…………….

J. K. SERGON

JUDGE

In the presence of:

………………………………… for the Appellant/Applicant

…………………………………. for the Respondent