[2023] KEHC 25355 (KLR)

Oira v Quarcoo (Civil Case 373 of 2010) [2023] KEHC 25355 (KLR) (Civ) (17 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25355 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case 373 of 2010

AN Ongeri, J

November 17, 2023

Between

Hezekiah Oira

Plaintiff

and

Patrick Quarcoo

Defendant

Ruling

1. The application coming for consideration is the one dated 6/3/2023 brought under Section 1A, 1b and 3a of the Civil Procedure Act, Under Order 22 rule 22, Order 40, Rules 1, and 4, Order 42, Rule 6, Order 51 Rule 1 of the Civil Procedure Rules, 2010, Cap 21 Laws of Kenya and all other enabling provisions of law seeking the following orders;i.This application be certified urgent and service thereof be dispensed with and the same be herd ex-parte in the first instance.ii.Pending the hearing and determination of this application, this honourable court be pleased to grant a stay of execution of the judgment delivered by Hon. Justice Sergon on 24th February 2023 in HCCC NO. 373 of 2010 – Nairobi and any other decree that ensue therefrom.iii.The costs of this application be provided for.iv.Any other orders that the honourable court may deem fit to grant.

2. The application is based on the following grounds;i.On 24th February 2023, the honourable court delivered judgment in favour of the plaintiff and awarded him kshs.3,300,000 in damages.ii.The defendant is dissatisfied with the decision and intends to appeal against it. The defendant has filed a notice of appeal and requested for typed proceedings and a certified copy of the judgment.iii.The defendant has an arguable appeal which will be rendered nugatory in the event a stay of execution for the following reasons, among others:a.The impugned letter of 8th June 2010 was written by the defendant in his capacity as the Chief Executive Officer of Radio Africa Limited and addressed to the plaintiff as the Corporation Secretary of Kenya Broadcasting Corporation and discussed actions taken by Kenya Broadcasting Corporation. Companies operate through their officials and it is arguable that any defamation suit should have instead been instituted by Kenya Broadcasting Corporation against Radio Africa Limited.b.The letter of 8th June 2020 was covered by qualified privileges as it aimed to discharge a private duty, the defendant as the Chief Executive Officer of Radio Africa Limited had a legitimate interest in the subject matter of the letter and the letter raised a complaint about a statutory body which has a public authority or responsibility.c.The contents of the letter of 8th June 2020 were substantially true.d.The letter of 8th June 2020 as a demand letter and there was no malice on the part of the defendant, as the Chief Executive Officer of Radio Africa Limited, in communicating their dissatisfaction with Kenya Broadcasting Corporation on how the latter had handled Memorandum of Understanding the parties had made.iv.When delivering the judgment, the Honourable Court granted the defendant a 30 day stay of execution pending the filing of a formal stay application. The stay is scheduled to lapse on 26th March 2023. v.The defendant stands to suffer substantial loss in the event the judgment of 24th February 2023 is not stayed, and the plaintiff is allowed to commence the execution process for kshs.3,300,000 he was awarded as damages. The defendant is apprehensive that in the event the appeal is successful, he will be unable to recover the sums and/or will be subjected to lengthy litigious process for the recovery of the sums which will expose the defendant to further expenses.vi.The defendant is willing to deposit the decretal sum as security in a joint interest earning account in the names of the advocates representing the parties.vii.This application has been brought timeously and without unreasonable delay and it is in the interest of fairness and justice that this application is heard urgently at the court’s earliest convenience.viii.The plaintiff will not be prejudiced if the orders sought herein are granted.ix.It is in the interest of justice that this application is allowed.

3. The application is supported by the affidavit of the applicant PATRICK QUARCOO sworn on 6/3/2023 which reiterates the grounds on which this application is premised.

4. The respondent Hezekia Oira filed a replying affidavit sworn on 25/4/2023 opposing the application dated 6/3/2023 in which he deponed that the judgment in HCCC No. 373 of 2010 was delivered on 24/2/2023. The court found as a fact the letter written by the applicant on 8/6/2010 that disparaged the respondent was false and that the applicant was actuated by malice and because the respondent’s employer KBC dismissed and got the respondent prosecuted never mind that he was acquitted had achieved his malicious intentions

5. The judgement that was delivered awarded the respondent a sum of Kshs 3,000,000 general damages for defamation and Kshs 300,000 for aggravated damages making a total of total of Kshs. 3,300,000. The applicant was granted a temporary stay of execution for 30 days to pay but to date he has not done the same and has instead brought this present application seeking for stay pending the hearing and determination of the intended appeal.

6. Apart from the speculative allegations the applicant has not given any evidence of substantial loss or any reason why he thinks that he will be unable to recover the said sum. He indicated that as an advocate of the high court he will be able to refund the decretal sum to the applicant in the event he succeeds in the appeal.

7. The applicant filed a supplementary affidavit sworn on 28/4/2023 in response to the replying affidavit.

8. The parties filed written submissions as follows; the applicant in his submission indicated that he would suffer substantial loss and his appeal will be rendered nugatory unless the orders sought herein are granted. He contended that he has an arguable appeal that ought to be considered on its merits by the court of appeal.

9. The applicant further submitted that the respondent bears the burden of proving his ability to repay the decretal sum once the applicant has raised his reasonable apprehensions to the court and in support cited the case of National Industrial Credit Bank Ltd v Aquinas Francis Wasike & another [2006] eKLR the Court of Appeal considered this burden as follows:“This Court has said before and it would bear repeating that while the legal duty is on an applicant to prove the allegation that an appeal would be rendered nugatory 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 the respondent or lack of them. Once an applicant expresses that 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.”

10. The applicant contended further that he has complied with the courts directions on security and urged this court to consider the holding in Focin Motorcycle Co. Limited vs. Ann Wambui Wangui & Another [2018] eKLR where it was held that“…Where the applicant proposes to provide security as the Applicant has done, it is a mark of good faith that the application for stay is not just meant to deny the respondent the fruits of judgment. My view is that it is sufficient for the applicant to state that he is ready to provide security or to propose the kind of security but it is the discretion of the Court to determine the security. The Applicant has offered to provide security and has therefore satisfied this ground for stay…”

11. The respondent submitted that the applicant alleges that he has an arguable appeal however no memorandum of appeal was attached to the application to ascertain whether the applicant has a good appeal with a chance of success. The applicant has also not assigned any error in the learned judge’s finding or any evidence to justify his perception.

12. The respondent argued that the applicant’s apprehension that he would be unable to refund the decretal sum cannot be a ground of granting of stay of execution. Moreover, this court and the court of appeal has held severally that in a money judgement the applicant must demonstrate with evidence that the respondent will not be able to refund the money and also by evidence the damages he will suffer unless the order is granted.

13. The issues for determination in this application are as follows;i.Whether the application was filed without undue delay.ii.Whether the applicant is entitled to stay pending appeal.

14. I find that the application was filed on 6/3/2023 one month after the judgment was delivered on 24/2/2023.

15. I also find that the applicant has deposited security for the due performance of the decree.

16. In the case of Patrick Ngetakimanzi vs Marcus Mutuamuluvi & 2 Others- High Court Election Petition No. 8 of 2013 it was held as follows;“Security of costs ensures that the respondent is not left without recompense for any costs or charges payable to him. The duty of the court is therefore to create a level ground for all the parties involved, in this case, the proportionality of the right of the petitioner to access to justice vis-a-vis the respondent's right to have security for any costs that may be owed to him and not to have vexatious proceedings brought against him.”

17. The application dated 6/3/2023 be and is hereby allowed in the following terms.:i.That stay of execution of the judgment delivered on 24/2/2023 be and is hereby granted pending appeal to the Court of Appeal.ii.That the costs of the application to abide the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 17TH DAY OF NOVEMBER, 2023. A. N. ONGERIJUDGE