[2022] KEHC 11134 (KLR)

Nyanga’u v Mekenye & 2 others (Civil Appeal E089 of 2021) [2022] KEHC 11134 (KLR) (2 June 2022) (Ruling)

Neutral citation: [2022] KEHC 11134 (KLR)

Republic of Kenya

In the High Court at Nyamira

Civil Appeal E089 of 2021

JN Kamau, J

June 2, 2022

Between

Victor Manyisa Nyanga’u

Appellant

and

Mariko Neko Mekenye

1st Respondent

Jeremiah Ongeri Samba

2nd Respondent

Keith Samba

3rd Respondent

Ruling

Introduction 1. In his Notice of Motion dated 10th November 2021 and filed on 22nd November 2021, the Appellant herein sought an order for stay of execution of the judgment/ decree in Nyamira CMCC NO 52 OF 2020 that was delivered on 8th November 2021 pending the hearing and determination of his appeal.

2. He further sought an order that he does provide sufficient security in the form of a suitable Bank Guarantee from a reputable financial institution to secure the decretal sum of Kshs 842,000/=.

3. In his Affidavit that he swore in support of the application on 19th November 2021, he contended that he was aggrieved by the entire judgment of the Learned Trial Magistrate and had instructed his advocates to appeal against the same. He stated that he had an arguable appeal which had a high chance of success.

4. He was apprehensive that the 1st Respondent was a person of straw and if he paid him the decretal sum and he was successful on appeal, he would not beable to recover the same from him. He was also concerned that if the 1st Respondent executed against him, it would render the present application and his Appeal nugatory.

5. He further averred that his Insurer, M/S Directline Assurance Limited, was willing, ready and able to furnish security in form of a bank guarantee and thus urged this court to allow his application.

6. In opposition to the said Application, on 25th November 2021, the 1st Respondent herein swore a Replying Affidavit. The same was filed on 29th November 2021. He deponed that the application was incurably defective, incompetent and an abuse of court process and ought to be dismissed. He averred that it was trite law that a successful party was entitled to remedies lawfully due to him/her pursuant to a court decision competently made at any stage of legal proceedings.

7. He stated that the Appellant had not satisfied the conditions as required under Order 42 Rule 6 of the Civil Procedure Rules and was therefore not deserving of the orders he sought. He pointed out that the Appeal he lodged was devoid of real triable issues and an afterthought whose sole intention was to delay the legitimate enjoyment of the fruits of his lawful judgment.

8. He was emphatic that it was not for the Appellant to dictate to this court the form of security that would be sufficient for the ultimate satisfaction of the decree. He opposed the facility of Bank Guarantee that the Appellant proposed for the reason that Directline Assurance Company Limited had a multifarious number of unpaid claims wherein it had offered bank guarantees as security hence a bank guarantee as security of her decree was unsafe and not reliable in the circumstances. He proposed that if the Appellant was desirous of prosecuting his appeal, he should be ordered to pay half (1/2) of the decretal sum and party and party costs and then deposit the other half (1/2) in a joint interest earning account to be opened in the names of the advocates of both parties. He added that she was willing and able to refund the decretal sum in the unlikely event that the Appeal herein succeeded. He thus urged this court to dismiss the Appellant’s present application with costs to her.

9. The Appellant’s Written Submissions were dated 4th December 2021 and filed on 14th December 2021 while those of the Respondent were dated 10th February 2022 and filed on 11th February 2022.

10. The Ruling herein is based on the said Written Submissions which parties relied upon in their entirety.

Legal Analysis 11. Both parties were agreed on the three (3) pre-requisite conditions that had to be met before an order for stay of execution could be granted. In support of the ground that the application herein had been filed without delay, the Appellant relied on the case of Halai &Another vs Thorton & Turpin (1963) Ltd [1990] KLR 365 that was cited in the Elena Doudoladava Korir vs Kenyatta University [2014] KLR where the Court of Appeal reiterated the aforesaid three (3) prerequisite conditions.

12. He also relied on the case of Kenya Orient Insurance Co Ltd vs Paul Mathenge Gichuki & Another [2014] eKLR to argue that the burden of proof shifted to a respondent where an appellant stated that it was unaware of the respondent’s resources.

13. He persuaded this court that in the event it disallowed the furnishing of a bank guarantee as security, then it should order that the entire decretal sum be deposited into court as the process of opening a joint interest earning account was time consuming. In this respect, it placed reliance on the case of Shanzu Beach Resort vs Crown Marble and Quartz [2020] eKLR. It did not, however, set out what the holding of that case was.

14. In arguing that the Appellant had not met the threshold of being granted an order for stay of execution, the 1st Respondent relied on the case of Kenya Shell Ltd vs Benjamin Karuga Kibiru & Another [1986] eKLR and Joseph Gachie t/a Joska Metal Works vs Sion Ndeti Muema [2012] eKLR where the holdings were that an order for stay of execution will not be granted if there was no evidence of substantial loss.

15. He also relied on the case of Mwaura Karuga t/a Limit Enterprises vs Kenya Bus Service Ltd & 4 Others [2015] eKLR amongst other cases to argue that a successful litigant was entitled to enjoy the fruits of his judgment. He therefore reiterated that the Appellant ought to be ordered to pay half (1/2) of the decretal sum and party and party costs and then deposit the other half (1/2) in a joint interest earning account to be opened in the names of the advocates of both parties pending the hearing and determination of the Appeal herein.

16. The present application was brought under Order 42 Rule 6 of the Civil Procedure Rules, 2010 which empowers a court to stay execution of its own orders or an appeal court to stay orders from the court whose decision was being appealed from.

17. Under the said Order 42 Rule 6 of the Civil Procedure Rules, an applicant has to demonstrate the following:-a.That substantial loss may result unless the order is made.a.That the application has been made without unreasonable delay.b.Such security as the court orders for the due performance of the decree has been given by the applicant.

18. The three (3) conditions for the grant of an order for stay of execution must be met simultaneously as they are conjunctive and not disjunctive.

19. This court noted that the 1st Respondent was really not vehemently opposed to the said application as he indicated that in the event that the court was inclined to allow the present application, then the Appellant ought to be ordered to pay half (1/2) of the decretal sum and party and party costs and then deposit the other half (1/2) in a joint interest earning account to opened in the names of the advocates of both parties.

20. On the other hand, the Appellant was agreeable to depositing the entire decretal sum in court in the event the court found the issuing of a bank guarantee not to be suitable security for the due performance of the decree herein.

21. The above notwithstanding and for completeness of record, this court nonetheless determined that the present application was filed without delay. The decision the Appellant intended to appeal against was delivered on 8th November 2021 and the application herein was filed on 22nd November 2021.

22. Although the decretal sum was not colossal, this court was persuaded to find and hold that there was likelihood that the Appellant would suffer substantial loss if he paid the 1st Respondent the decretal sum and he succeeded on appeal. Notably, the 1st Respondent did not file an Affidavit of Means to demonstrate his ability to refund the monies. The Appellant had thus met the first two (2) condition for being granted an order for stay of execution.

23. Whereas he had also met the third condition of being granted an order for stay of execution, this court took the view that security in the form of a bank guarantee was not suitable. There was a possibility of a bank that had given a bank guarantee not honouring the same. Not being a party to a suit would make it difficult for a successful party to enforce any orders he or she might get concerning such a bank guarantee. This court therefore determined that the security to be furnished herein would be in form of money.

DISPOSITION 24. For the foregoing reasons, the upshot of this court’s ruling was that the Appellant’s Notice of Motion application dated 10th November 2021 and filed on 22nd November 2021 was merited and the same be and is hereby allowed in terms of Prayer No (3) therein on the following conditions: -1. Thatthere shall be a stay of execution of Judgment that was delivered by Hon W.C.Waswa (RM) on 8th November 2021 in Nyamira Civil Suit No 49 of 2020 Mariko Neko Mekenye vs Jeremiah Ongeri Samba & Others pending the hearing and determination of the appeal on condition the Appellant shall deposit into court the sum of Kshs 842,000/= within thirty (30) days from the date of this Ruling.2. For the avoidance of doubt, in the event, the Appellant shall default on Paragraph 24(1) hereinabove, the conditional stay of execution shall automatically lapse.3. The Appellant be and is hereby directed to file and serve his Record of Appeal within forty-five (45) days from the date of this Ruling.4. This matter will be mentioned on 21st September 2022 to confirm compliance and/or for further orders and/or directions.5. Costs of the application herein shall be in the cause.6. Either party is at liberty to apply.

25. It is so ordered.

DATED AND DELIVERED AT NYAMIRA THIS 2ND DAY OF JUNE 2022J. KAMAUJUDGE