[2023] KEHC 24864 (KLR)

Njai & 2 others v Wetende (Civil Appeal E237 of 2023) [2023] KEHC 24864 (KLR) (6 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24864 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Appeal E237 of 2023

HM Nyaga, J

November 6, 2023

Between

Moses Gatharia Njai

1st Applicant

Sidian Bank

2nd Applicant

Francis Ekitola

3rd Applicant

and

Roselyne Shikhaya Wetende

Respondent

Ruling

1. Vide a Notice of Motion dated 11th September, 2023, the Applicants sought several orders. The pending ones are that;i.The court stays the execution of the judgment in Nakuru CMCC No. 1349 of 2021 delivered on 7th August, 2023. ii.An order for provision of a Bank Guarantee of the entire decretal sum of Kshs.211,220/= only as security pending the hearing and determination of the Instant Appeal.

2. The application is predicated on grounds on its face and supported by an affidavit sworn by Moses Gatharia Njai, the 1st Applicant herein. He averred that the lower court judgement was delivered on 7th August, 2023 in favour of the Respondent whereby liability was entered at 100% against them. The court then awarded the respondent General Damages of Ksh. 200,000/=, Special Damages of Ksh.11220/= plus costs and interest.

3. He deponed that they are apprehensive that the Respondent may commence execution against them and thus rendering the Appeal nugatory.

4. He deposed that they are ready, willing and able to furnish the court with a bank guarantee from Family Bank for the entire principal sum as security. That their insurer, Direct Line Assurance Company Limited has entered into an agreement with Family Bank for the provision of the bank guarantee.

5. He averred that the respondent might not refund the decretal amount in the event their appeal succeeds as his ability to refund the said amount is unknown.

6. The Respondent opposed the Application through a Replying Affidavit sworn by her Advocate, John Ndung’u Njuguna on 27th September, 2023. He averred that they are not opposed to stay pending appeal being granted save on condition that 50% of the Decretal Sum of Kshs. 155,310. 00 be paid to the Respondent within the next 30 days and the remaining 50% be deposited in court or in a joint interest earning account within the same period and in default execution to ensue.

7. According to the Respondent the bank guarantee proposed by the applicants as security is inadequate for reasons that it limited in time and does not cover the entire lifespan of the Appellant herein; the guaranteeing bank has the sole and unilateral right/discretion to recall/invalidate/alter the facility any time and which totally erodes its value as ‘security’ as it makes it totally insecure; it does not in any way recognize, define, stipulate and or safeguard/secure interests of the Respondent herein; it does not accord with the principle of proportionality and the need to create a level playing ground between the Appellants and the Respondent by reconciling and striking a balance between their respective and competing interests and rights;& no good reason(s) have been given as to why Directline Assurance should not give cash/monetary security more so this being a monetary decree and the sum invoked herein being minimal.

8. The counsel further averred that there are no good reasons as to why the Respondent should be denied and or delayed from enjoying fruits of her judgement herein albeit half of it pending the hearing and determination of the appeal herein more so since the same is on quantum only.

Analysis & determination 9. Having considered the application, grounds and affidavits, the only issue I should determine is -what would be the most appropriate security to grant under the circumstances?

10. The Applicants propose a provision of a bank guarantee of the entire decretal sum while the Respondent proposes that half of the decretal sum be paid to her and the other half to be deposited in the joint interest earning account in the name of both advocates for the parties herein.

11. The Respondent avers that the bank guarantee offered as security is inadequate. I have considered her averments and in that regard. The guarantee is not specific to this matter, but is a general one. It is not known how many more cases are subject to this guarantee. I concur with the respondent that this is not adequate.

12. The respondent asks the court to have half the decretal sum paid to her and the balance to be deposited in a joint account. I am of the view that this will be tantamount to finding that the applicant’s appeal has no chances of success. Therefore the court will have to look into another way of addressing the matter.

13. In determining the security, the court has to strike a balance on the interests of the appellant and those of the respondent. In striking such a balance the court exercises a discretion which must at all times be geared towards the achievement of the justice between the parties.

14. In the case of Henry Sakwa Maloba v Bonface Papando Tsabuko (2020) eKLR the High Court reiterated the finding in the case of Century Oil Trading Company Limited v Kenya Shell Limited Nairobi (2008) eKLR, where the court stated:“Where execution of a money decree is sought to be stayed, in considering whether the applicant will suffer substantial loss, the financial position of the applicant and that of the respondent becomes an issue. The court cannot shut its eyes where it appears the possibility is doubtful of the respondent refunding the decretal sum in the event that the applicant is successful in his appeal. The court has to balance the interest of the applicant who is seeking to preserve the status quo pending the hearing of the appeal so that his appeal is not rendered nugatory and the interest of the respondent who is seeking to enjoy the fruits of his judgment”.

15. In conclusion, I find that the application dated 11th September, 2023 is merited. I therefore order as follows;i.That execution of the judgment and the ensuing Decree in _Nakuru CMCC No. E1349 of 2021 be and is hereby stayed pending the hearing and determination of this appeal on condition that the entire decretal sum be deposited by the Applicants in an interest earning account in the joint names of Counsel for the parties within 30 days of the date hereof;ii.In default the stay orders shall lapse automatically without further reference to the court.iii.The appellant to file and serve the record of appeal within 60 days from the date hereof.iv.Costs of the subject application shall abide the appeal.

DATED, SIGNED AND DELIVERED AT NAKURU THIS 6TH DAY OF NOVEMBER, 2023. H. M. NYAGAJUDGEIn the presence of;C/A JenifferMs Wanjiru for ApplicantMr. Njuguna for Respondent(Ms Kurere holding brief)