[2017] KEHC 1506 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KIAMBU

CIVIL APPEAL NO. 56 OF 2017

NJUCA CONSOLIDATED CO. LTD........................1ST APPELLANT

DAVID MACHARIA WANGU...................................2ND APPELLANT

VERSUS

LINETH CHEMUTAI MORITIM

Alias LINET CHEMUTAI MARITIM............................RESPONDENT

RULING

1. The Application before the Court is a Notice of Motion dated 05/05/2017. In the main it seeks an order for stay of execution of the judgment delivered by the Honourable J. Kituku in Kiambu CMCC No. 171 of 2015. The judgment was delivered on 05/04/2017. The Applicants timeously filed their Appeal simultaneously with the present Application.

2. The judgment was from a personal injury claim arising from a road traffic accident involving a Motor Vehicle owned by the 1st Applicant and driven by the 2nd Applicant. The Learned Magistrate found the Applicants wholly liable for the accident and awarded the Respondent Kshs. 5,000,000/= as damages for pain and suffering and Kshs. 3,456,000/= as damages for diminished capacity.

3. The Appellants are aggrieved by the decision of the lower Court on both its apportionment of liability and award of damages and has, hence, appealed to this Court. Meanwhile, afraid that the Respondent will execute the judgment of the lower Court, the Applicants, now seek a stay of execution pending the hearing and determination of the Appeal. The Appellant filed a Supporting Affidavit in support of his Application.

4. The Application is opposed. The Respondent filed Grounds of Opposition.

5. The parties filed written submissions in support of their respective positions.

6. The procedural posture of the Application is that this is an application for stay of the judgment of the lower Court. It is, therefore, governed, primarily, by the terms of Order 42 Rule 6 of the Civil Procedure Rules. The conditions to be met by an Applicant in order to be entitled to an order for stay are encapsuled in that Rule in the following terms:

6. (1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of 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 ispreferred 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.

7. The law regarding the grant of stay of execution is well established in Kenya. Among the legion of authoritative cases establishing it, the judges of the Court of Appeal were both concise and emphatic in Rhoda Mukuma v John Abuoga:

It was laid down in M M Butt v The Rent Restriction Tribunal, Civil Application No Nai 6 of 1979, (following Wilson v Church (No 2) (1879) 12 Ch 454 at p 488) that in the case of a party appealing, exercising his undoubted right of appeal, the court ought to see that the appeal is not rendered nugatory. It should therefore preserve the status quo until the appeal is heard.

Granting a stay in the High Court is governed by Order XLI rule 4(2), the questions to be decided being – (a) whether substantial loss may result unless the stay is granted and the application is made without delay; and (b) the applicant has given security.

8. In Antonie Ndiaye v African Virtual University [2015] eKLR which has been cited by both parties, Gikonyo J. set out the guiding principles in the determining whether to grant a stay of execution or not in these terms:

The discretion must be exercised judicially, that is to say, judiciously and upon defined principles of law; not capriciously or whimsically. Therefore, stay of execution should only be granted where sufficient cause has been shown by the Applicant. And in determining whether sufficient cause has been shown, the Court should be guided by the three pre-requisites provided under Order 42 Rule 6 of the Civil Procedure Rules.

9. Hence our decisional law applying Order 42 Rule 6 of the Civil Procedure Rules has set out a four-part test which an Applicant for a stay of execution must satisfy in order to be successful. Such a party must demonstrate that:

a. The appeal he has filed is arguable;

b. He is likely to suffer substantial loss unless the order is made. Differently put, he must demonstrate that the appeal will be rendered nugatory if the stay is not granted;

c. The application was made without unreasonable delay; and

d. He has given or is willing to give such security as the court may order for the due performance of the decree which may ultimately be binding on him.

10. The Respondent claims that the Applicants have not demonstrated that they have an arguable appeal. Indeed, she positively argues that the chances of the appeal succeeding are dismal. She argues that the Memorandum of Appeal has made only generalized statements and the Applicants have “made no effort to demonstrate in their submissions the arguability of the Appeal.”

11. I have perused the Memorandum of Appeal filed in this case. I am unable to say that the grounds of appeal enumerated are in-arguable. I should point out that to earn a stay of execution, one is not required to persuade the Appellate court that the filed appeal has a high probability of success. All one is required to demonstrate is the arguability of the appeal: a demonstration that the Appellant has plausible and conceivably persuasive grounds of either facts or law to overturn or vary the original verdict. The Appellant contests both apportionment of liability (an eminently arguable issue considering that the Deceased was a pedestrian who was allegedly drunk at the time of the accident) as well as on damages.

12. On the question of substantial loss, the Applicants have alleged that the Respondent would be unable to refund the decretal sum if the appeal is successful. They made this allegation in their Supporting Affidavit arguing that evidence was tendered at trial that the Respondent is a casual labourer and would, therefore, not be in a position to refund the decretal sum. The Respondent has not responded to this allegation directly. Instead, she argues that she is entitled to the fruits of her judgment and that the Court should at least order part-payment of the decretal sum.

13. I note that the decretal sum is a colossal amount by any standards – upwards of Kshs. 8. 5 Million if one factors in costs and interests. In National Industrial Credit Bank Limited v Aquinas Francis Wasike & Anotherthe Court of Appeal held thus:

This Court has said before and it would bear repeating that while the legal duty is on an applicant to prove that an appeal would be rendered nugatory because a respondent because a respondent would be unable to pay back the decretal sum, it is unreasonable to expect such an applicant to know in detail the resources owned by a respondent or lack of them. Once an applicant expresses a respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the respondent to show what resources he has since that is a matter which is peculiarly within his knowledge.

14. The cases cited by the Applicants – Allhyder Trading Company v Lucy Jepngetich Mibei [2016] eKLRandABNAmro Bank N.V. v Le Monde Foods Limited (No. NAI 15 of 2002)are in accord with this position.

15. In the present case, the Applicants have raised the financial status of the Respondent as a factor and the possibility that she would be unable to repay the decretal sum paid to her. The evidential burden shifted to the Respondent to show that she would be in a position to refund the decretal sum or any part of it that is paid to her if the appeal is successful. She failed to discharge this evidential burden. Consequently, the logical conclusion is that the Applicants have satisfied the element for grant of a stay of execution: they have legitimate apprehension that the appeal will be rendered nugatory if stay is not granted.

16. It is not contested that the Application was timeously made and that the Applicant is willing to furnish security and has so offered. Consequently, it is my view that the Applicants have satisfied all the pre-requisites for the grant of stay of execution.

17. The Respondents relied on a number of authorities to urge the Court to order that the Applicants do pay part of the decretal sum to the Respondent. There are circumstances when an order for part-payment of the decretal sum is the fairest way to balance the rights between the Judgment Creditor and Judgment debtor. However, in this case, I am handicapped by the fact that I have absolutely no information about the capacity of the Respondent to refund any decretal sums paid to her. I have also noted that the Applicants do not accept any liability at all for the accident and insist that the road traffic accident was inevitable and not a product of any negligence on their part.

18. Consequently, even though it is important for the Court to balance the rights of both parties: the right of the Respondent to enjoy the fruits of her judgment if possible, and the protection of the Appellant against losses which might be engendered if the Respondent cannot refund any monies paid to her, in this case I am unable to make an order that any part of the decretal sum be paid to the Respondent presently. The only way the Court will be able to balance the Respondent’s rights is to insist on a strict timeline for the hearing and disposal of the appeal.

19. In that connection, I order that the Applicants will be granted a stay of execution on the following terms:

a. That the Applicants deposit the entire decretal sum in a joint interest bearing account opened in the names of the two advocates for the Applicant and Respondent respectively within thirty days of today;

b. Failure to abide by either (a) will lead to automatic execution;

c. That the Applicants must file the Record of Appeal within sixty (60) days of today. Failure to do will lead to an automatic dismissal of the Appeal; and

d. Costs of this Application will follow the costs in the Appeal.

20. Orders accordingly.

Dated and delivered at Kiambu this 30thday of November, 2017.

.......................

JOEL NGUGI

JUDGE