[2022] KEHC 15926 (KLR)

Odali v Melly (Civil Appeal 10 of 2022) [2022] KEHC 15926 (KLR) (11 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15926 (KLR)

Republic of Kenya

In the High Court at Kericho

Civil Appeal 10 of 2022

AN Ongeri, J

November 11, 2022

Between

Boniface Lugalia Odali

Appellant

and

Fredrick Kibet Melly

Respondent

Ruling

1. The Application coming for consideration in this Ruling is the one dated February 21, 2022 seeking stay of Execution pending Appeal.

2. The Application is supported by the Affidavit of Boniface Lugalia in which it is deposed as follows: -i.That judgement In Kericho CMCC number 311 of 2019 was delivered on January 25, 2022 for a sum of Kshs 750,000;ii.That the 30 days stay granted on January 25, 2022 by the trial court is set to lapse on the February 23, 2022 thus exposing the applicant to a risk of execution proceedings;iii.That it is trite law that an appeal does not operate as stay and the applicant’s moveable properties are thus exposed to execution and sale;iv.That this appeal has a high chance of success;v.That the respondent may levy execution against the appellant/applicant and the same will render the applicant’s appeal nugatory and will cause the applicant to suffer irreparable loss and damage;vi.That if the decretal amounts is paid over to the respondent, the respondent would not be in a position to refund the same if the appeal is successful;vii.That the respondent has not disclosed nor furnished the court with any documentary evidence to prove his financial standing;viii.That unless stay of execution is granted, the applicant will suffer injustice and irreparable loss;ix.That his insurer, Directline Assurance Limited is ready, willing and able to furnish such reasonable security in form of bank guarantee for the decretal sum of Kshs 750,000 or as this honorable court may deem fit;x.That this application has been made in good faith, and the same will not occasion any prejudice to the respondent;xi.That it is in the interest of justice and fair hearing that the instant application be allowed and orders granted as prayed since the same will not occasion any prejudice to the respondent.

3. The Respondent opposed the Application and filed a Replying Affidavit in which it is deposed as follows: -i.That judgement was delivered in his favour on January 25, 2022 for general damages of Kshs 750,000 with costs and interest;ii.That the applicant was granted 30 days stay of execution, which have since lapsed as the appeal was not filed within the prescribed time;iii.That the memorandum of appeal as framed does not raise any triable issues, and as such the appellant is not acting in good faith and is only interested in further delaying the matter hence denying him the fruits of his judgement;iv.That the appellant has not demonstrated any substantial loss that he will suffer if the order for stay of execution is not granted;v.That the appellant’s assertion that if the decretal sum is paid to him, he will not be in a position to refund the same if the said appeal is successful is baseless and malicious as the appellant has not requested to be furnished with any affidavit of means;vi.That it is the responsibility of the appellant to furnish the court with such documentary evidence on his financial standing as the same is merely an allegation that he would not be in a position to refund the said monies in the event that the appeal succeeds;vii.That should the court be constrained to allow this application, then in the interest of justice the same should be done with conditions to order the appellant to release half of the decretal amount to him and deposit the balance into a joint interest earning account, or impose such other conditions that the court may deem fit to grant in the circumstances, but not the mentioned bank guarantee which is merely a guarantee but not a tangible security for the performance of such decree.

4. The sole issue for determination in this Application is whether the Applicant has established the grounds for stay of Execution pending Appeal.

5. The Applicable law is Order 42 Rule 6 of the Civil Procedure Ruleswhich states as follows: -(1)No appeal or second appeal shall operate as a stay of execution or proceedings 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 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.(3)Notwithstanding anything contained in sub rule (2), the court shall have power, without formal application made, to order upon such terms as it may deem fit a stay of execution pending the hearing of a formal application.(4)For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given.(5)An application for stay of execution may be made informally immediately following the delivery of judgment or ruling.(6)Notwithstanding anything contained in sub rule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.

6. In Antoine Ndiaye versus African Virtual University (2015) eKLR, the court held as follows: - “The relief of stay of execution pending appeal is governed by Order 42 Rule 6 of the Civil Procedure Rules. The relief is discretionary although, as it has been said often, 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 prerequisites provided under Order 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; andc)Such security as the court orders for he due performance of such decree or order as may ultimately be binding on him has been given by the Applicant.”

7. I allow the Application dated February 21, 2022 on the following grounds: -i.That the Appellant deposits half of the decretal sum in an interest earning account held jointly by Advocates for both parties within 30 days of this date..ii.The costs of the Application to abide the Appeal.

Delivered, dated and signed at Kericho this 11thday of November, 2022A N ONGERIJUDGE