[2022] KEHC 211 (KLR)

Ngaruiya & another v Wanyonyi (Civil Appeal E146 of 2021) [2022] KEHC 211 (KLR) (15 March 2022) (Ruling)

Neutral citation: [2022] KEHC 211 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal E146 of 2021

MW Muigai, J

March 15, 2022

Between

Samuel Ngaruiya

1st Appellant

Japheth Gitonga Guantai

2nd Appellant

and

Samuel Wekesa Wanyonyi

Respondent

(Being an Appeal from the judgment on quantum of the Hon. B. Kasavuli (Mr.) Principal magistrate in Mavoko CMCC No. 844 of 2019 dated and delivered on 5th August, 2021)

Ruling

1. Vide Application dated the 3rd of September 2021 under Section 1A,1B and 3A of the Civil Procedure Act, Article 159 (2) (a) of the Constitution of Kenya, 2010, Order 21 Rule 1B, Order 22 Rule 22, Order 40 Rule 6, Order 51 of the Civil Procedure Rules seeking the following orders, THAT;a.Spent.b.Spent.c.Spent.d.This Honourable Court be pleased to grant a stay of execution of the judgement and/or decree issued by Honorable B. Kasavuli on 5th of August 2021 pending full hearing and determination of this Appeal in Machakos HCCA 146 of 2021. e.This Honorable Court allow the Applicant to furnish the court with security in the form of a Bank guarantee from the DTB Bank.f.Spentg.the costs of this Application abide the outcome of the appealh.This Honorable Court be pleased to issue any other order and/or direction it deem fit to grant in the circumstances.

2. The Application is supported by the affidavit of Japheth Gitonga Guantai sworn in 13th of September 2021 in which he contended that avers that he is the insured of Motor vehicle registration KBJ 318W and being aggrieved by the judgement that was entered against him on 5th August 2021, he filed an appeal that he believes has high chances of success and that the Respondent may levy distress against them rendering the appeal nugatory. He further averred that the Respondent would not be able to settle the decretal sum if the Appeal was successful and further that he had not shown any evidence of his financial standing. He contended that he was willing to furnish the court with a Bank Guarantee form DTB Bank.RESPONDENT’S REPLYING AFFIDAVIT

3. The Respondent filed a replying Affidavit dated 28th September 2021 in which he deposed that Applicant should deposit half the amount being Kshs 126,775/- plus costs and interest in a joint interest earning account and the other half be released to him. He opposed the bank guarantee as she contended that it is only valid for 12 months from 6th November 2020 by which time the Appeal will not have been concluded. He deposed that the limb of furnishing security was not fulfilled. He deposed that the appeal did not raise any grounds and was fled to frustrate his efforts of reaping the fruits of the judgement.

4. Directions were taken in 21st of September 2021 that the application be canvassed by way of written submissions. The Appellants filed submissions on 6th December 2021 while the Respondent indicated that he would rely on his Replying Affidavit.APPELLANTS’ SUBMISSIONS

5. The Appellants’ submitted on three grounds, counsel submitted that the Application had been filed without unreasonable delay as judgement was delivered on 5th of August 2021 and the Application filed on 13th September 2021.

6. Secondly, the Appellants submitted while relying on the case of Edward Kamau & Another vs Hannah Mukui Gichuki & Another[2015] eKLR that the Respondent’s reply does not inform the court of his financial standing meaning that his financial status remains unknown and therefore he will not suffer substantial loss if the decretal sum is not paid.

7. While relying on the case of Recoda Freight & Logistic Limited vs Elishana Angote Okeyo [2015] eKLR where the issue of an arguable appeal was discussed, he submitted that the Memorandum of Appeal dated 16th August 2021 raises triable issues.

8. Lastly, they reiterated their willingness to provide a bank guarantee that is open.

9. The Applicants submitted that they had satisfied the conditions set out in Order 42 Rule 6 in asking the court to grant them the orders sought.ANALYSIS & DETERMINATION

10. I have considered the application, affidavits in support and in opposition to and the written submissions and I find that the issue for determination is whether the Applicant is entitled to the orders sought.

11. The application is premised on Order 42 Rules 6 of the Civil Procedure Rules, 2010 wherein it is stipulated as follows:“No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except 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; and(b)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.

12. The Applicant avers that the Respondent may levy execution against them rendering the Appeal nugatory and the same will cause irreparable loss and damage and that the respondent would be in no position to refund them in the event the Appeal succeeds. In addition, the Appellants insurer has not demonstrated the substantial loss that it would suffer if the decretal mount is paid to the Respondent. On the other hand, the Respondent has not in her reply given any indication of being able to pay back the decretal sum in the event the Appeal will succeed.

13. This court in Michael Kamau Kurumah and 2others vs Agness Mwikali Malonza HCCA 181 0F 2021 observed that;“However, the mere fact that the Respondent’s means are unknown to the Applicant does not necessarily mean that if the appeal succeeds, he will not be able to refund the decretal sum.”

14. Gichuhi, Ag.JA (as he then was) in Kenya Shell Limited vs. Kibiru [1986] KLR 410, at 417 held:“It is not sufficient by merely stating that the sum of Shs. 20,380. 00 is a lot of money and the applicant would suffer loss if the money is paid. What sort of loss would this be? In an application of this nature, the applicant should show the damages it would suffer if the order for stay is not granted. By granting a stay would mean that status quo should remain as it were before judgement. What assurance can there be of appeal succeeding? On the other hand, granting the stay would be denying a successful litigant of the fruits of his judgement.”

15. As regards the first ground, none of the parties have shown what substantial loss they will suffer.

16. On the second ground of time, Judgement in Mavoko CMCC 844 of 2019 was delivered on 5th of August 2021 and the current application was filed on 14th of September 2021. I find that this was done within reasonable time.

17. As to what constitutes an arguable appeal, the Court of Appeal in Nairobi Women’s Hospital vs. Purity Kemunto [2018] eKLR:-“To say that an appeal is arguable is another way of saying that it is not frivolous and that it raises a bona fide issue deserving full consideration by the Court. Even one bona fide issue will satisfy the requirement, for the law does not look for a multiplicity of arguable issues.”

18. Having perused the Memorandum of Appeal and without going into the merits, I find that the Appeal raises arguable issues that will be determined by the Appellate court.

19. As regards the issue of deposit of security, the Applicant has offered to give a bank guarantee of Kshs. 30,000,000 from DTB that the Respondent contends that it is only for 12 months.

20. From the record, the DTB Bank Guarantee at Clause 3, “its validity shall not exceed one (1) year from the date of issuance or until such time that the said guarantee is cancelled or becomes void whichever comes first and shall be renewed thereafter at our discretion”

21. The court, in RWW vs. EKW [2019] eKLR, addressed its mind to the purpose of a stay of execution order pending appeal, in the following words:“The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.”DISPOSITION

22. In the end, I issue the following orders;a.There be a stay of execution of the judgment and decree of the judgement and/or decree issued by Honourable B. Kasavuli (P.M) on 5th of August 2021 pending full hearing and determination of this Appeal.b.The Appellants deposit in a joint earning interest account in the name of the advocates for the respective parties within Sixty (60) days from the date of this Ruling.c.In default of (b), the application shall stand dismissed.d.Costs shall abide in the appeal.

It so ordered.RULING DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 15THDAY OF MARCH, 2022. M.W MUIGAIJUDGE