[2022] KEHC 9982 (KLR)

National Bank of Kenya Ltd v Tachasis Wholesalers Ltd (Civil Appeal 66 of 2019) [2022] KEHC 9982 (KLR) (12 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9982 (KLR)

Republic of Kenya

In the High Court at Eldoret

Civil Appeal 66 of 2019

RN Nyakundi, J

July 12, 2022

Between

National Bank of Kenya Ltd

Appellant

and

Tachasis Wholesalers Ltd

Respondent

Ruling

1. The present motion filed in court on 7/6/2022 is governed by order 42 rule 6(1) of the Civil Procedure Rules, part of it which espouses the following conditions to be met before judicial discretion is exercised in favour or against the applicant:a.That the application must have been filed without undue delay.b.That the applicant ought to demonstrate substantial rules andc.Finally deposit of security for due performance of the decree pending the outcome of the appeal.

2. The motion is grounded as deponed in an affidavit by Paul Chelang’a dated 7/6/2022. In opposition to the application the respondent filed ground of opposition dated 17th June 2022. I have reviewed the entire record, the motion, both affidavit in support and objection to the grant of the orders of stay of execution pending an appeal.

Resolution 3. The relief being applied for by the applicant falls within the realm of discretion of the court. From the perspective of comparative jurisprudence in the cases of UBN Ltd v Odusote Bookstores Ltd. (1994) 3 NWLR (Pt 331) 129, Per Fabiyi JSC in Ajuwa v S.P.D.C. (2011) 12 S.C. (Pt. IV) 118 at 155, State v Whitman R.11, 431 A 2d1229, 1233; Blacks Law Dictionary, 6 th ed, 466, University of Lagos v Olaniyan (1985) 16 NSCC (Pt 1) 98 at 113, Kabba Multipurpose Cooperative Union Ltd. v Irewole Multipurpose Union Ltd (2009) All FWLR (Pt. 493) 1378.

4. The court observed as follows on discretion “Discretion has been defined to mean ‘a power or right’ conferred upon public functionaries by law of acting officially in certain circumstances according to the dictates of their own judgment and conscience. The most important consideration is that the courts must exercise their discretion judicially and judiciously. The courts in exercising its discretion will also consider that the winning party is entitled to the fruits of his judgment until further appeal sets aside the earlier decision. The court should also consider the fact that the applicant has a legally enforceable right to protect and that he has complied with all necessary procedural formalities, and the application is supported by important materials properly placed before the court to persuade it to exercise its discretion in favour of the applicant. Also, important is the conduct of the parties, whether the applicant has acted timeously or he has come before the court with clean hands”

5. In the context of our jurisdiction the court in Mohamed Sulimt/aChoice Butchery –v- Nasser Puria Jamal (2013)eKLR and Ms PortReiz Maternity –v- James Karangacourt of appeal 63(1997). “This being a matter of for the court discretion and as the circumstances that make up for the remedy, the right of appeal must be balanced against an equally eighty right that of the plaintiff to enjoy the fruits of the judgment delivered in his or her favour. There a must be a just cause for depriving the plaintiff off that right.”

6. Some of the key conditions the court is required to construe in declining or allowing stay of execution include: whether denial of stay will destroy the subject matter of the appeal or the appeal will be rendered nugatory before the appellate court pronounces itself on the competing rights of the parties or in one way or another the exercise of discretion is likely to occasion an injustice. A consideration of a special circumstances and perhaps most litigated is on the threshold commonly known as substantial laws. Sir Chunilalv. Mehta and Sons, Ltd v The Century Spinning and Manufacturing Co. Ltd 1962 AIR 1314 the elements of a substantial question of law were stated follows:“The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law.”

7. Further in Bungoma High Court Misc Application No 42 of 2011 - James Wangalwa & Another vs. Agnes Naliaka Cheseto that:“The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal. This is what substantial loss would entail.’’

8. The test to govern exercise of discretion underpinned on the principles of substantial loss there is unlikely to be any particular magic in the word or phrase chosen to reflect the weight attributable to the discretion to grant or decline a stay of execution pending appeal. It is dependent on the specific facts of each case. In granting the orders for stay of execution one has to bear in mind whether the applicant can be reasonably be compensated by way of damages in the event the appeal is dismissed. To this end the applicant is dissatisfied with the whole ruling of this court and pertinent findings dated 19/5/2022. In the view of this court with complete fairness the substantive question of law and facts is yet to be adjudicated between the parties. Notwithstanding the constitutional right of appeal and entitlement to the applicant affidavit evidence ought to demonstrate the high chances of the appeal succeeding. The applicant has not shown any special circumstances or substantial loss likely to be suffered should the order on statements be executed. On the other hand, I see no sense of prejudice or failure of justice on the part of the applicant should the appeal proceed without an order of stay of execution.

9. What else is there to say? The evaluation of the motion and the ascription of probative value to the affidavit statements falls short of establishing the twin conditions precedent on the appeal being rendered nugatory or substantial loss if this court declines to exercise discretion in his favour. Taking that position as I do the motion dated 7/6/2022 is denied with costs.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 12TH DAY OF JULY, 2022. .............................R. NYAKUNDIJUDGEIn the presence of:-Origo for Omwenga for the appellant present