[2017] KEHC 3533 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

CIVIL APPEAL NO. 14 OF 2017

(An appeal from the Judgment of the Senior Principal Magistrate, Runyenjes in PMCC No. 13 of 2016 dated 28/02/2017)

NJIRU BENSON MURAGE........….……......................................................................APPLICANT/APPELLANT

VERSUS

PETER NJUE ZACHARIA

(suing as the legal representative of the Estate of the late JUSTIN MUKUNDI NJUE).....RESPONDENT

R U L I N G

1. By consent of the parties, the application dated 7/06/2017 by the applicant and the one dated 23/06/2017 by the respondent be heard together. The first application seeks for orders for stay of execution of the judgment in CMCC No. 145 of 2016.

2. The applicant filed another application dated 15/06/2017 seeking for urgent certification and hearing of his application date 7/06/2017. These two applications were placed before Chuka High Court Judge Limo R.K. On 16/06/2017 who granted interim order for stay of execution pending hearing inter parties of the applications.

3. The respondent upon being served with interim orders for stay filed the application dated 23/06/2017 seeking for the setting aside of the said order on grounds that there was non-disclosure of material particulars which misled the court to grant the interim orders. This application and its supporting affidavit will be treated as a response to the application dated 7/06/2017.

4. The application dated 15/06/2017 and the one dated 17/06/2017 have been spent.

5. The applicant has attached the order given by the magistrate and it reads:-

(a) That the applicant pays half of the decretal amount to the respondent within 14 days from today.

(b) That the applicant deposits the other half amount in a joint interest account in the names of both counsels herein for the next 28 days from todate.

(c) That in default, execution to issue.

(d) Mention on 13/06/2017 to confirm compliance.

6. The applicant filed his submissions while the respondent opted not to.

7. In his submissions, the applicant cited Order 42 Rule 6 which provides that no appeal operates as stay of execution of proceedings under a decree or order and as such the court on application of the aggrieved party may grant stay.

8. In response to the issue of non-disclosure, the applicant submitted that he has made full disclosure of the orders issued by the magistrates' court and it is those orders that he seeks to review. Having been aggrieved by the orders granted, the applicant has appealed against them herein.

9. The filing of the application for review, he argued, is supported by Order 42 Rule 6 in that it does not matter whether a similar application had been filed before the magistrate and disallowed or granted with conditions.

10. He cited the following cases to support his argument:-

(a) LOCHAB TRANSPORT LIMITED VS TERESIA WANGARI & ANOTHER [2015] eKLR

(b) GITHUNGURI VS JIMBA CREDIT CORPORATION LTD (No.2) [1988] 838

(c) MARGARET MWIHAKI WANJAU VS JOSEPH MUIRURI MUGO [2015] eKLR

(d) JOHN OCHIENG ORWA & ANOTHER VS MICHAEL KARIUKI MUTUGI & ANOTHER [2017]

11. The other issue was allegation of non-disclosure of the orders and proceedings of the lower court. It would be dishonest for a party to seek orders fro stay in the High Court without disclosing that he had applied for the similar orders before the magistrate and that they were either denied or given with conditions which he was not able to meet. This would reflect negatively on the applicant as he urges the High Court to grant stay and may also influence the outcome of the ruling depending on the circumstances of the case.

12. I have perused the current application and not e that the orders sought to be reviewed are annexed to it. The supporting affidavit also explains what transpired in the lower court. These are facts laid bare before this court and the applicant cannot be said to be guilty of non- disclosure.

13. The respondent relied on Embu HCCA No. 48 of 2016 EMILIO MURIUKI VS GEOFFREY MWENDA which had different facts. In that case, the applicant had applied for stay in the High Court without disclosing that he had already obtained orders with conditions he had not complied with in the lower court. He was not appealing against the magistrate's orders, but he hoped to obtain fresh orders without disclosing the earlier proceedings. The facts of this application are different and I find the said case not relevant.

14. It is my considered opinion that this application is properly before the court

15. the applicant states that he was aggrieved by the orders of paying half of the decretal amount to the respondents because he knows that he has no ability to refund the substantial amount in the event that the appeal is successful.

16. The burden of proof is on the respondent to prove the applicant wrong and show his ability to refund the amount if it is paid to him. The respondent did not file any affidavit of means in response to the applicant's allegations. In the absence of any response, the court is left with no choice but to consider the evidence of the applicant. He says that he knew the deceased well and that he is convinced that his family does not possess the financial ability to refund the money.

17. The decretal amount is Kshs.3,040,000/= and half of it is approximately Kshs.1,500,000/= which is quite substantial. The other half was to be deposited an interest-earning account in the joint names of the advocates for the parties. The deposit in an escrow account does not pose any danger of loss to the applicant in case of a successful appeal. He is ready to deposit the whole decretal amount in escrow account.

18. I am convinced that the applicant has explained to the satisfaction of this court the grounds relied on.

19. It is my finding that this application is merited. I grant orders in the following terms:-

(a) That pending the determination of the appeal stay is hereby granted.

(b) That the whole decretal amount be deposited in a joint account in the names of the counsels on record for the parties within 21 days pending hearing and determination of this appeal.

(c) In default of compliance with (b) above, the orders for stay will automatically be vacated.

(d) That the costs of this application be in the cause.

20. It is hereby so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 18TH DAY OF SEPTEMBER, 2017.

F. MUCHEMI

JUDGE

In the presence of:-

Ms. Ndorongo for Mugendi for respondents