[2024] KEHC 3613 (KLR)

Njeru v Kitheka (Civil Appeal 232 of 2023) [2024] KEHC 3613 (KLR) (8 March 2024) (Ruling)

Neutral citation: [2024] KEHC 3613 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal 232 of 2023

MW Muigai, J

March 8, 2024

Between

Victor Macharia Njeru

Applicant

and

Agnes Nzisa Kitheka

Respondent

Ruling

Notice of Motion Application 1. Vide application dated 27. 09. 2023 brought under section 3, 3A, and 79G of the Civil Procedure Act , Order 42 Rule 6 , Order 50 Rule 1 & 3 and order 51 Rule 1 of the Civil Procedure Rules, 2010 the Applicant seeks the following orders, that;a.Spentb.Spentc.The judgment delivered by Honourable B.A. Luova, on 31st May 2023 be stayed pending the hearing and determination of the intended Appeal.d.This judgment delivered by Honourable B.A. Luova, on 31st May 2023 be set aside pending the hearing and determination of the intended Appeal.e.The suit be allowed to start denovo and the Appellants be allowed to tender in the discovered new crucial information on fraud and be granted a chance to cross examine the Respondent’s witness and call upon its witnesses.f.The costs of this Application abide the outcome of this Appeal.

2. The Application is supported by an affidavit sworn by Victor Macharia Njeru on 27. 09. 2023 in which he deposes that aggrieved by the judgment seeks to have the judgment set aside or reviewed as they discovered new crucial information that the police records confirm that the Claimant was not involved in the accident and nullifies the police abstract that was produced before the Honourable Court. They filed an application dated 28. 7.2023 which was dismissed. Aggrieved by this ruling, they intend to appeal and are apprehensive that the Respondent may execute at any time. That he will suffer substantial loss if the orders sought are not granted.

Replying Affidavit 3. The Respondent opposed the Application through a replying affidavit dated 20. 11. 2023 in which it was deposed that the application is misconceived , bad in law and a gross abuse of the court process. Further, that the deponent of the supporting affidavit had no capacity to swear the affidavit as no authorization had been adduced to confirm the deponent is the manager of the insured vehicle. It was deposed that there was no prayer for stay of execution and thus the application should be dismissed. In addition, the application fails to meet the threshold for extension of stay provided under Order 40 Rule 4 (2) and the conditions set out in the case of Nicholas Kiptoo Arap Koris Salat vs Independent Electoral and Boundaries Commission & 7 others [2014] eKLR.

4. The Respondent submitted that the application was filed 43 days from the date of delivery of the ruling and the delay has not been explained for the court to exercise its discretion as stated in the case of Joseph Ngigi Ibare vs Myovi James & Another [2016] e KLR. It was contended that the issue of fraud was not raised when the matter came up twice for mention and further the Applicant filed a response to the claim and invited the Respondent for a second medical examination but the report was not produced in court. Further the police abstract was never challenged, no charges have been preferred, it emanated from Matuu police station and was authentic as it was duly signed and stamped.

5. It was contended that the letter dated 17. 02. 2023 was dated before the date of delivery of the judgment thus the Applicant had time to move the Court accordingly therefore the assertion that it is new evidence in their custody is misleading, unmeritorious and unfunded. The application was brought in bad faith as the Applicant have refused to sufficiently defend the suit and only when execution is imminent is when he rushed to court with frivolous claims.

6. The Application was canvassed by way of written submissions.

Applicant’s Submissions 7. Vide submissions filed on 08. 02. 2024 the Applicant reiterated the contents of the Supporting affidavit and submitted that the ruling should be set aside on the grounds that the ruling by the Trial court dated 16. 08. 2023 should be set aside on the grounds that the trial magistrate erred in law and in fact by not considering the appellants application and evidence before the court. He relied on the case of Wachira Karani vs Bildad Wachira [2016] eKLR.

8. On the issue of stay of judgment, while relying on the case of Globaltours & Travels Ltd; Nairobi H.C Winding up cause 43 of 2000, Butt vs Rent restriction [1982] KLR 417 , Stanley Karanja Wainaina & Another vs Ridon Anyangu Mutubwa[2016]e KLR, Housing Finance Company of Kenya vs Sharokkher Mohamed Ali Hirji & Another [2015] eKLR and Gianfranco Manenthi & another vs Africa Merchant Assurance Company Ltd [2019] eKLR submitted that if the orders sought were not granted then the Appeal would be rendered nugatory. That there was no inordinate delay and the Appellant was ready and willing to furnish security in the form of a bank guarantee from Family bank

9. The Respondent did not file submissions.

Determination 10. I have considered the Application, the corresponding affidavits and the submissions of parties on record and I find that there are two issues for determination, whether the court should issue an order of stay and whether the judgment should be set aside.

11. On the issue of stay, Order 42 Rule 6(1) and (2) of the Civil Procedure Rules,2010 provides as follows:“(1)No appeal or second appeal shall operate as a stay of execution or proceeding 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 subrule (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.”

Undue Delay 12. The first issue is whether the application has been filed without unreasonable delay. I note that the judgment was delivered on 16. 8.2023 in the presence of advocates for parties. This application was filed on 03. 10. 2023 while the memorandum of Appeal was filed on 15. 09. 2023. The Appeal was filed on time but this Application was filed about six weeks later. I find that there was delay but there was no inordinate delay in filing the Appeal.

Substantial Loss 13. Secondly, the Applicant has stated that he stands to suffer loss if the orders sought are not grated but has not demonstrated how exactly it will suffer. It was contended that he was apprehensive that the Respondent will proceed to execute at any time. On the other hand, the Respondent contends that substantial loss has not been demonstrated.

14. Substantial loss was discussed in the case of James Wangalwa & Another vs. Agnes Naliaka Cheseto [2012] eKLR, as:“No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. 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 ... the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”

15. Similarly in the case of James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, it was observed that:“No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. 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 ... the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”

16. On the ability of the Respondent financial incapability of paying back the decretal sum being one of the reasons the orders should be granted, I beg to differ. The onus of proving the Respondent’s inability goes beyond throwing an allegation without evidence. It is upon the Applicant who alleges the same to go ahead and prove it. Nonetheless, the court has settled this matter and stated that this should not be the reason to deny one an order of stay of execution. This was held in Stephen Wanjohi vs. Central Glass Industries Ltd. Nairobi HCCC No. 6726 of 1991, financial ability of a decree holder solely is not a reason for allowing stay; it is enough that the decree holder is not a dishonorable miscreant without any form of income.

Security 17. On the issue of security, furnishing of security is key in granting of orders of stay of execution pending appeal. The Applicant did not indicated what kind of security he is willing to furnish the Court with. This ground has thus not been satisfied.

18. In Machira T/A Machira & Co Advocates vs. East African Standard (No 2) [2002] KLR 63 it was held that:“to be obsessed with the protection of an appellant or intending appellant in total disregard or flitting mention of the so far successful opposite party is to flirt with one party as crocodile tears are shed for the other, contrary to sound principle for the exercise of a judicial discretion. The ordinary principle is that a successful party is entitled to the fruits of his judgement or of any decision of the court giving him success at any stage. That is trite knowledge and is one of the fundamental procedural values which is acknowledged and normally must be put into effect by the way applications for stay of further proceedings or execution, pending appeal are handled. In the application of that ordinary principle, the court must have its sight firmly fixed on upholding the overriding objective of the rules of procedure for handling civil cases in courts, which is to do justice in accordance with the law and to prevent abuse of the process of the court”.

19. On the issue of setting aside of the judgment. I am guided by the case of I have perused the file and I note that the grounds for setting aside of the judgment delivered on 31. 05. 2023 are the very grounds espoused in the memorandum of Appeal dated 15. 09. 2023. At this juncture, this court cannot sit as an appellate court until the matter is placed properly before it. Setting aside a judgment at this juncture will be equal to determining the Appeal. The Appellant in this case participated in the hearing and as such, the grounds for setting aside espoused in Order 10 Rule 4 (1) and (2) of the Civil Procedure Act where judgment has been entered in default. The Applicant should desist from putting the cart before the horse. As such this ground fails and the same is dismissed.

Disposition1. In the circumstances, I hereby grant stay pending the hearing and determination of the Appeal on condition that the Applicant pay the Respondent half the decretal sum within 90 days and; 2. Deposit the other half in a joint interest earning account in the name of both advocates within 45 days failure to which the order of stay lapses.It is so ordered.

RULING DELIVERED DATED SIGNED IN OPEN COURT IN MACHAKOS ON 8TH MARCH, 2024 (VIRTUAL/PHYSICAL CONFERENCE).M.W.MUIGAIJUDGEIn the presence of:Ms Waithira H/B for the Ochoki for the ApplicantNo Appearance - For the RespondentGeoffrey/Patrick - Court Assistant(s)