[2023] KEHC 23312 (KLR)

Oduor v DOO (Minor Suing Thought the Mother and Next Friend JLO) (Civil Appeal E028 of 2023) [2023] KEHC 23312 (KLR) (11 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23312 (KLR)

Republic of Kenya

In the High Court at Kisumu

Civil Appeal E028 of 2023

RE Aburili, J

October 11, 2023

Between

Benard Omondi Oduor

Applicant

and

DOO

Respondent

Minor Suing Thought the Mother and Next Friend JLO

(Being an Appeal from the Judgment and Decree of Hon. Temu (SPM) delivered on the 2nd February 2023 in Nyando CMCC No. 171 of 2017)

Ruling

1. This appeal is related to HCCA No. E027 and E026 of 2013. The appeals in question arise from proceedings before Nyando SPM’s Court wherein the defendants in the three matters are the same as the appellants herein.

2. The cause of action arose from a road traffic accident which occurred on 12th July 2017 involving Motor Vehicle Registration No. KCD 182V Isuzu Bus Coach belonging to the defendant herein which wherein the Claimants /Plaintiffs in the lower court were fare paying passengers as a result of which they sustained injuries.

3. This appeal arises from SPM CC No. 171 of 2017 whereas the other two appeals arise from SPM CC No. 166 and 168 of 2017 respectively. I will therefore write one ruling which will apply to all the other two files as they all seek for stay of execution of decree pending appeal.

4. In the Notice of Motion dated 12th June 2023, the Appellant/Applicant Bernard Omondi Oduor through his advocate’s firm seeks for stay of execution of decree in Nyando SPM CC No. 171 of 2017 pending hearing and determination of this appeal. He further prays that the applicant be allowed to deposit the entire decretal sum in a joint interest earning account in the names of both advocates representing the parties within 30 days. In the alternative to the above prayers, that this court do issue fresh and reasonable conditions of stay for security pending hearing and determination of the appeal and finally, that costs of the application be provided for.

5. The grounds upon which the application was predicated are on the face of the application namely, that the interim stay orders granted by the lower court where to lapse on 16th June 2023 and that the Respondent’s counsel was likely to execute decree which would render the appeal nugatory and the appellant suffer substantial loss. Further, that the appellant is ready and willing to abide by any reasonable conditions that the court may impose including conditions for depositing of the entire decretal sum in a joint interest earning account in the name of both counsel for the parties and or any other security that the court may direct.

6. Finally, that the application was made in good faith, in the interest of justice and in good time without delay.

7. In the supporting affidavit sworn by Bernard Omondi Oduor the Appellant, he gives the history of the litigation before the lower court in Nyando Chief Magistrate’s court Civil Case No. 171 of 2017 and the quantum of damages awarded being Kshs.103,000 in the impugned judgment delivered on 2nd March 2023 in favour of the Respondent herein.

8. He annexed copy of Memorandum of Appeal and copy of application for stay of execution of decree pending appeal made before the lower court, together with a ruling which granted him stay of 30 days.

9. He deposes that the Respondents has no known financial ability hence unlikely to refund the half or whole of the decretal sums if paid to them in the event that the appeal herein succeeds and that the Appellant stands to suffer substantial loss and damage. Further, that the appeal has high chances of success and that the Appellant is willing to issue a Bank guarantee from a bank of good repute as security and or any other security as may be ordered by the court. The other deposition are reiterations.

10. Opposing the application, the Respondent’s counsel Mourice Carlos Ouma swore a Replying affidavit on 19th June 2013 contending that the application is an afterthought, hopelessly lacking in merit, is fatally incurable, defective and amounts to an abuse of court process, considering the judgment hence it should be summarily dismissed with costs.

11. That the purpose of the application as filed is to frustrate the Respondent from enjoying the fruits of her reasonable judgement obtained in the lower court.

12. That there is no evidence on the nature and extent to which the appeal shall be rendered nugatory and further that the nature and extent of substantial loss likely to be suffered by the appellant if the decretal sum is settled, is not demonstrated as required by law.

13. That this application is an abuse of court process because a similar application was made in the lower court and a ruling delivered to the extent that the appellant pays to the Respondent half of the decretal sum with costs while the remainder sum be deposited in a joint interest account of both counsel or the appellant furnishes the court with sufficient Bank Guarantee to secure the said half; and that instead of the appellant complying with the orders of the trial court or appeal or seek for review of the same if not contended, he has instead filed this application based on the same facts and material without disclosing reasons for failure to comply with the orders and conditions imposed by the trial court.

14. It was deposed that in view of the above situation, this application is brought in bad faith and intended to frustrate the Plaintiff/Respondent not to enjoy the fruits of her judgment. That this application is made in bad faith and with impunity to the sanctity of the order made by a court of law, tailored to frustrate the Respondent unnecessarily. Counsel urged this court to dismiss the application for lack of merit.

15. Both counsel appeared before me on 19th June 2023 for directions and they agreed by consent to canvass the application by relying on the pleadings and affidavits on record.

Determination 16. I have already reproduced the pleadings and affidavits in support and in opposition to the application as above. The issue for determination is whether the application dated 12th June 2023 is competently before this court and in view of the ruling by the lower court on stay pending appeal with conditions and if so, what orders should this court make on the merits of the application for stay of execution of decree pending appeal?

17. On whether the application for stay pending appeal is competent, the conditional stay orders having been granted by the lower court and which conditions the appellant has not complied with, the Respondent’s counsel deposed in contention that this application is brought with impunity to the orders of the lower court granting a conditional stay. Further, that the appellant has not demonstrated why he never complied with the conditional stay granted in the lower court and instead filed a similar application in the High Court.

18. The appellant annexed copy of the application for stay pending appeal as filed in the lower court. The same is dated 24th February 2023 which is materially the same as the application before this court dated 12th June 2023 subject of this ruling. He however disclosed that a ruling was delivered on 16th May 2023 directing settlement of half of the decretal sum plus costs whilst half be deposited or be secured by way of a Bank Guarantee from Family Bank within 30 days from 16th May 2013 which order the Appellant prays that this court sets aside and or varies them.

19. In prayer 5 of the application dated 12th June 2023, the Appellant seeks for fresh and reasonable conditions of stay or security pending appeal herein.

20. The parties counsel never referred this court to any authority to support their respective positions which were deposed, but with no arguments advanced to explain the 2 different scenarios stated above.

21. A similar situation arose in Patrick Kalaya Kulamba & Another vs Phillip Kamosu & Roda Ndaru Phillip (suing as the legal representative of the Estate of Jackline Ndinda Phillip (Deceased) [2010] eKLR. In that case, the lower court had granted a conditional stay which the applicants in the appeal argued that it was not complied with because it was prejudicial as the release of a sum of Kshs. One million to the Respondent as ordered by the lower court was not secured by any deposit in the event that the appeal succeeds and that the condition therefore effectively denied stay. On the part of the Respondents in that case, it was argued that the applicants not having complied with the condition for stay in the lower court, had not come to court with clean hands and relied on the case of Timsales Limited vs Hiram Gichohi Mwangi (2013) eKLR and Kinoti Marete vs Moses Njaro & Another [2016] eKLR to support their proposition that since the stay was not denied in the lower court, the filing of a further application for stay in the High Court upon failure to comply with earlier conditions set by the lower court amounts to an abuse of the court process. Further argument was that the applicant ought to have appealed against the lower court’s decision.

22. On how the court resolved the above issue and which issue I am faced with in this case, I must delve into what Order 42 Rule 6(1) of the Civil Procedure Rules stipulates that:-“6(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 my order but, the court appealed from my from sufficient cause order stay of execution of such decree or order, and whether the application for such, 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.”

23. From the above provisions of the Civil Procedure Rules, it is clear that whether an application for stay pending appeal has been allowed or rejected in the lower court in the first instance, the High Court or appellate court shall be at liberty on an application, to consider such application before it and make such order as it may deem just. Thus, in considering a similar application as that which was made before the lower court, the appellate court will not be exercising the appellate jurisdiction but original jurisdiction, which jurisdiction is not dependent on whether or not a similar application had been made in the lower court or its outcome.

24. The Court of Appeal in Equity Bank Limited vs West Link MBO Limited [2013] eKLR Civil Application No. 78 of 2011 held that Order 42 Rule 6(1) of the Civil Procedure Rules is in parimateria with Rule 5(b) of the Appellate Jurisdiction Rules and stated that:“It is trite law that in dealing with Rule 5(2) (b) applications, the court exercises discretion as a court of first instance and even where a similar application has been made in the High Court or other similar court under Rule 6 (1) of Order 42 of the Civil Procedure Rules and refused, the court in dealing with a fresh application still exercises original independent discretion as opposed to appellate jurisdiction (Githunguri vs Jimba Credit Corporation Ltd (No. 2) (1988) KLR 838. ”

25. On his part, Musinga JA stated that:“The court is said to be exercising special independent original jurisdiction because on considering whether to grant or refuse an application for stay, it is not hearing an appeal from the High Court decision. It can grant orders of stay, irrespective of whether or not such an application had been made in the High Court. (See Stanley Munga Githunguri vs Jimba Credit Corporation Ltd (supra).”

26. The holding by Kiage JA clarified the position further as follows:-“In ordinary circumstances, the court has only appellate jurisdiction and in the absence of Rule 5(2) (b), a party who has been refused a stay of execution or an injunction by the High Court would have been obliged to apply to the Court of Appeal to set aside the refusal and then having done so, grant the stay or injunction….but because of the existence of Rule 5(2) (b), one does not have to apply to the court to first set aside the refusal by the High court and then having set aside the High Court order, to grant one itself. That is clearly the sense in which the expression ‘independent original jurisdiction’ is to be understood and that was made abundantly clear in the Githunguri case, supra, by use of the expression such as ‘we have to apply our minds denovo or it is not an appeal from the learned judge’s discretion to ours.”

27. Therefore, as correctly put by Meoli J in the Patrick Kalara Kulamba case (supra), as long as the appeal from the substantive decision of the lower court has been lodged, an application under Order 42 Rule 6(1) of the Civil Procedure Rules can be entertained afresh in the High Court, whether the same was made, heard and determined in favour of or against the appellant/applicant and whether there were conditions which accompanied the order of stay or not.

28. Accordingly, albeit the appellant herein was granted the order of stay on conditions which he has not fulfilled and seeks for fresh orders of this court meaning he seeks for variation or setting aside of the conditions of stay which he considers prejudicial to him because the Respondent has no known income which she can refund the half of the decretal sum if paid to her and the appeal succeeds, nothing precludes the Appellant/Applicant from invoking the original independent jurisdiction of this court under Order 42 Rule 6(1) of the Civil Procedure Rules to hear and determine a fresh application for stay pending appeal and in seeking for fresh or alternative conditions for stay that this court may deem just to grant.

29. In the Patrick Kalara Kulamba case, the learned Judge had this case to say and I adopt her reasoning fully as that case was in parimateria with this case and I have heavily borrowed from her well-reasoned finding that:“19I would venture to add that the wording of Order 42 Rule 6(1) of the Civil Procedure Rules effectively grants the same jurisdiction to this court as an appellate court as Rule 5(2) (b) does to the Court of Appeal; to entertain an application for stay whether or not the same has already been heard by the lower court and dismissed. The only salient difference is that in the case of the High Court the Rule makes it clear that it matters not whether the earlier application for stay in the lower court has been allowed or rejected in the lower court. That is my reading of Order 42 Rule 6(1).20. It suffices, in my opinion, in this case, in view of the nature of the application before me, that there is an existing substantive appeal against the judgment of the lower court. To insist in this case that the applicant must first file a separate appeal on the ruling of the lower court, apart from the judgment would in my view not only lead to confusing and duplication of proceedings in respect of the same matter but also cause delay. The provisions however must be applied under the guiding principles of Article 159(2) (d) of the Constitution.21. In the circumstances of this case, I consider that driving the applicant from the seat of justice where there exists a substantive appeal, and in disregard of the full import of Order 42 Rule 6(1) would amount to raising a technicality, namely, the filing of an appeal on a supplemental matter that actually touches on the appeal where a substantive appeal already exists, above purpose and substance. There may arise in certain cases allegation of abuse of procedure but that must be established.22. From the foregoing, I do not think that much turns on the Respondent’s objection regarding the matter under consideration…”

30. The above cited cases from the Court of Appeal and the High Court settle the issue of the competency of this application. In the end, I find and hold that the application dated 12th June 2023 is competently before this court and not an abuse of court process and neither can it be said to be an attempt to frustrate the Respondent and scuttle his enjoyment of the lawfully obtained judgment.

31. On the merits of the application and therefore what orders this court should make, the commencement point is to examine whether the principles applicable in application for stay of execution of decree pending appeal as espoused in Order 42 Rule 6(2) of the Civil Procedure Rules have been fulfilled. The provisions are as follows:-“42(6)(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; andb.such security as the court order for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”

32. In addition to the above statutory conditions, courts have over time held that a stay may only be granted for sufficient cause and the court in deciding whether or not to grant stay, it will consider the overriding objectives of the law as stipulated in Sections 1A and 1B of the Civil Procedure Act.

33. On whether the appellant has demonstrated that he shall suffer substantial loss unless stay is granted, in James Wangalwa vs Agnes Naliaka Cheseto [2012] eKLR, the often cited case on this condition, the court stated that:“No doubt, in law, the fact that the process of execution has been put in motion or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution is levied and completed, that is to say, the attached properties have been sold as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the Civil Procedure Rules.This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”[emphasis added]

34. The applicant in this case deposes that he shall suffer substantial loss and damage if the ½ decretal sum is paid to the Respondent as ordered by the lower court because the financial status of the Respondent is unknown hence she may not refund the said sums of money should the appeal which is said to be meritorious with high chances of success, succeed.

35. The purpose of stay of execution order pending appeal as stated in RWW v EKW [2019] eKLR is:“to preserve the subject matter in dispute so that the rights of the Appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his or her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.”

36. To grant or refuse an application for stay of execution pending appeal is discretionary. When granting the stay, balance must however be made on the interests of the appellant with those of the Respondent. The Respondent in this case has not demonstrated ability to repay the ½ decretal sum or the whole of it if paid by the Appellant who is fully insured and the appeal turns out to be successful. On the other hand, the appellant has demonstrated that he is willing to deposit the whole of the decretal sum into a joint interest earning account to be held by both counsel for the parties or to issue a Bank guarantee from a reputable Commercial Bank so that should the appeal not succeed, the Respondent will easily access the decretal sum.

37. In light of the depositions by the applicant which have not been controverted by any contrary evidence, I find that substantial loss would occur if the ½ decretal sum is paid to the Respondent and the appeal is successful, as the respondent has not demonstrated that she will be in a position to refund the said sums.

38. I shall not delve into the issue of whether the appeal has high chances of success as that is not a matter within my province save that from the grounds of appeal filed, I do not find that the appeal is frivolous. It is arguable and an arguable appeal is not necessarily one that must succeed.

39. The other element that the applicant must establish is whether the application was filed timeously without delay. Judgment in the lower court was delivered on 7th February 2023. The application for stay pending appeal was first filed on 1st March 2023 in the lower court and ruling rendered on 16th May 2023 giving a conditional stay.

40. This appeal was filed on 16th February 2023 while the application subject of this ruling was filed on 12th June 2023, less than 30 days from 16th May 2023 when the lower court delivered the ruling granting conditional stay of execution to the applicant herein.

41. In my view, there was no inordinate delay as the application was filed within the 30 days that the applicant was to comply with the initial conditional stay of execution of decree pending appeal.

42. On whether the applicant has offered to deposit security for the due performance of decree, the Applicant has deposed that he is willing to deposit the entire decretal sum into a joint interest earning account of both counsel or to issue Bank Guarantee from a reputable bank hence there is an offer for deposit of security for the due performance of decree, considering that inflation in this country, currently, is quite high hence no money should stay idle.

43. In the circumstances, and without belabouring on any other condition for stay, I am satisfied that the applicant has fulfilled all the main conditions for stay of execution of decree pending appeal, which appeal, from my perusal of the trial court record, is not sophiscated and can be fast racked since the main suit is a 2017 matter so that parties do not have to wait for too long to have the appeal determined. I therefore make the following orders:1. That there be and is hereby granted stay of execution of decree in Nyando CMCC No. 171 of 2017 pending the hearing and determination of this appeal on condition that the entire decretal sum awarded in the lower court shall be deposited by the Applicant herein Bernard Omondi Oduor in a joint interest earning account to be opened and held jointly by the firm of Kimondo Gachoka & Company Advocates and Ms. Odhiambo Ouma & Company Advocates with a Commercial Bank of repute within 30 days of today and in default, the stay herein granted shall lapse.2. That as the Appellant has already filed and served a complete record of appeal, he shall now filed and serve written submissions within 14 days of today, upon which, the respondent shall have seven days within which to file and serve written submissions.3. That this appeal shall be mentioned on 1/11/2023 to fix a judgment date.4. That this Ruling and Order shall apply Mutatis Mutandis to HCCA No. E027 of 2023 and HCCA No. E026 of 2023 with necessary modifications as to the parties’ names and the specific decretal sums of money awarded to each Respondent in the lower court files.5. Costs shall be in the main appeal.

44. I so order.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 11TH DAY OF OCTOBER, 2023R.E. ABURILIJUDGE