[2017] KEHC 1664 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 717 OF 2016

NJUGUNA NJOROGE..........................APPELLANT/APPLICANT

VERSUS

PETER KIHIU MUCHERU........................................RESPONDENT

AND

CHIO SEO DONG..............................................1ST THIRD PARTY

PATRICK OJIAMBO OLUGO..........................2ND THIRD PARTY

RULING

This is the ruling for the application dated the 4th May 2017 brought under Order 42 Rule 6(1), (2) and (6) of the Civil Procedure Rules which seeks the following orders.

1. Spent

2. THAT there be a stay of execution of the Judgment entered pending the hearing of this application.

3. THAT there be a stay of execution of the judgment entered pending the hearing and determination of this Appeal.

4. THAT the costs of the application be in the cause.

The Application is supported by the Affidavit of the Applicant Njuguna Njoroge and its premised on the grounds that,

I.The Appellant has appealed against the Judgment of the Honourable Lower court.

II. The Appeal has merits with high chances of success as against the plaintiff.

III.The Appeal shall be rendered nugatory if the order herein is not made.

IV.This Application has been made without delay.

V. Unless stay is granted, the Applicant’s rights will be prejudiced and he will suffer substantial loss.

VI. It is just and expedient to do so.

VII.The Appellant is willing and ready to provide security for the Judgment award on terms set out by the Honourable court.

The respondent opposed the Application vide a replying affidavit dated 8th June, 2017.

I have considered all the material that has been laid before me.

The relief of stay of execution pending appeal is governed by Order 42 Rule 6 of the Civil Procedure Rules.

The relief though discretionary must be exercised judiciously, that is to say upon defined principles of law, not capriciously or whimsically. A, stay of execution therefore should only be granted where sufficient cause has been shown by the Applicant. In determining whether sufficient cause has been shown, the court should be guided by the three prerequisites provided under Oder 42 Rule 6 of the Civil Procedure Rules, that:

a)The application is brought without undue delay;

b) The court is satisfied that substantial loss may result to the Applicant unless stay of execution is ordered; and

c) Such security as the court orders for the due performance of such decree or orders as may ultimately be binding on him has been given by the Applicant.

Whether the Application was timeously brought

The first one is simple and straight forward. The Appeal from the decision of the lower court was filed on the 28th Day of November 2016, barely a month after the impugned decision was delivered by the learned Magistrate. I am persuaded that the Applicant acted swiftly and is deserving of this relief on the first ground.

Whether substantial loss will occur if the stay is not granted

The second test, that is, substantial loss occurring to the applicant, is indeed the cornerstone of the jurisdiction of the High Court in granting stay of execution. In the case of Kenya Shell Limited Vs. Benjamin Karuga & Ruth Wairimu Karuga (1982-1988) l KAR 1018the court of Appeal stated that:

“It is usually a good rule to see if Order 41 Rule 4 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss in its various forms, is the cornerstone of both jurisdiction for granting stay”

And substantial loss in the sense of Order 42 rule 6 has been described; see the following rendition in a work of Ogola J in Tropical Commodity Suppliers Ltd (Supra) that:-

“Substantial loss does not represent any particular mathematical formula. Rather, it is a qualitative concept. It refers to any loss, great or small, that is of real worth or value as distinguished from a loss value that is merely nominal….”

According to Gikonyo J in Antonie Ndiaye V African Virtual University [2015] eKLR,

“….. the Applicant must show he will be totally ruined in relation to the appeal if he pays over the decretal sum to the Respondent. In other words he will be reduced to a mere explorer in the judicial process if he does what the decree commands him to do without any prospects of recovering his money should the appeal succeed. Therefore, in a money decree, like is the case here, substantial loss lies in the inability of the Respondent to refund the decretal sum should the appeal succeed. It matters not the amount involved as long as the Respondent cannot pay back.”

The learned judge goes ahead to observe that,

“ The onus of proving substantial loss and in effect that the Respondent cannot repay the decretal sum if the appeal is successful lies with the Applicant; follows after the long age legal adage that he who alleges must proof. Real and cogent evidence must be placed before the court to show that the Respondent is not able to refund the decretal sum should the appeal succeed. It is not, therefore, enough for a party to just allege as is the case here that the Respondent resides out of Kenya and his means is unkown.”

A similar position was held in the case of Machira t/a Machira & Co. Advocates Vs East African Standard (No 2) (2002) KLR 63. The court held that;

“In this kind of applications for stay, it is not enough for the applicant to merely state that substantial loss will result. He must prove specific details and particulars….. where no pecuniary or tangible loss is shown to the satisfaction of the court, the court will not grant a stay…..”

This legal burden does not shift to the Respondent to prove he is possessed of means to make a refund. Except, however, once the Applicant has discharged his legal burden and has adduced such prima facie evidence such that the Respondent will fail without calling evidence, the law states that evidential burden has been created on the Respondent.

I do not find any material in the Application that discharges the obligation on the part of the Applicant. On this, the Applicant has not established that substantial loss will occur unless stay of execution is granted. The presumption therefore remains that in the event the Appeal is successful, the Applicant/Appellant should be able to recover the decretal sums from the respondent. Having stated that, I do not deem it necessary to consider the other requirement of security. The Application is hereby dismissed. The respondent will have the costs of this Application.

It is so ordered.

Dated, Signed and Delivered at Nairobi this 10th Day of November, 2017.

…………………………….

L. NJUGUNA

JUDGE

In the Presence of

…………………for the Appellant/Applicant

…………………for the Respondent

…………………for the 1st Third Party

……………………………………. for the 2nd Third Party