[2022] KEHC 16469 (KLR)

Onunga & another v Ofwana (Suing as the personal representative of the Estate of Emmanuel Ooko Otieno (Deceased) (Civil Appeal E042 of 2022) [2022] KEHC 16469 (KLR) (16 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16469 (KLR)

Republic of Kenya

In the High Court at Kericho

Civil Appeal E042 of 2022

AN Ongeri, J

December 16, 2022

Between

Joseph Ochieng Onunga

1st Appellant

Sangany Agencies Limited

2nd Appellant

and

Dorrine Ouma Ofwana (Suing as the personal representative of the Estate of Emmanuel Ooko Otieno (Deceased)

Respondent

(Being an application for stay of execution of the judgment/decree dated July 20, 2022 vide Kericho CMCC No 47 of 2018; Dorrine Ouma Ofwana (suing as a Legal Representative of the estate of Emmanuel Ooko (deceased) v Joseph Ochieng Onunga & another.)

Ruling

1. The application coming for this consideration in this ruling is the one dated 15/8/2022 seeking the following orders;i.That this matter be certified urgent and heard ex parte in the first instance and service thereof be dispensed with.ii.That this Honorable court be pleased to order a stay of execution of the judgment/decree dated July 20, 2022 vide Kericho CMCC No 47 of 2018; Dorrine Ouma Ofwana (suing as a Legal Representative of the estate of Emmanuel Ooko (deceased) v Joseph Ochieng Onunga & another pending the hearing and determination this application inter partes.iii.That this honorable court be pleased to order a stay of execution of the judgment/decree dated 20/7/2022 vide Kericho CMCC No 47 of 2018; Dorrine Ouma Ofwana (suing as a Legal Representative of the estate of Emmanuel Ooko (deceased) v Joseph Ochieng Onunga & another pending the hearing and determination of Kericho HCCA No 42 of 2022. iv.That this honorable court be pleased to order that the Appellant furnishes security in the form of a Bank Guarantee for the decretal sum of Kshs 3,000,000/= pending hearing and determination of this Appeal.v.That the costs of this application be provided for.

2. The application is based on the grounds on the face of it and supported by the affidavit of Joseph Onunga sworn on 15/8/2022.

3. The Applicants aver that judgment was entered against them on 20/7/2022 vide Kericho CMCC No 47 of 2018 whereby the Plaintiff was awarded Kshs 3,345,750/= as special and general damages under the Law Reform Act and Fatal Accidents Act plus costs and interest at court rates.

4. The Applicants aver that the judgment was delivered in the absence their duly instructed advocates therefore no stay of execution was granted.

5. The Applicants aver that they instructed their advocates to lodge an appeal against the judgment on quantum and subsequently they lodged an appeal vide Kericho HCCA No 42 of 2022.

6. The Applicants were cognizant that it is trite law that an appeal does not operate as stay of execution and therefore the Applicants’ goods and moveable properties were exposed to execution proceedings by way of proclamation and attachment.

7. The Applicants were apprehensive that the Respondent would proceed to proclaim the Applicants’ goods and properties thus rendering the appeal nugatory.

8. The Applicants aver that they stood to suffer irreparable loss and damage if the orders sought in the application were not granted.

9. The Applicants aver that their insurer M/s Directline Assurance Co. Ltd was ready and willing to offer security in form of a bank guarantee for a sum of Kshs 3,000,000/= for the full decretal amount pending hearing and determination of the appeal.

10. The Applicants aver that the Respondent was a man of straw and would not be able to refund the decretal sum were the appeal to succeed as her financial capabilities are unknown.

11. The Applicants aver that the application would not occasion any prejudice to the Respondent as the same can be compensated by an award of costs.

12. The Respondent filed a Replying Affidavit sworn by Dorrine Ouma Ofwana opposing the application.

13. The Respondent avers that the memorandum of appeal as filed did not raise the issue of liability but only on the quantum payable.

14. The Respondent avers that the appeal as filed did not dispute that an accident happened and that Emmanuel Ooko Otieno died in the accident, hence the issue of liability was not contested.

15. The Respondent avers that her husband died in a road traffic accident over four years ago and it was only fair and prudent to have the appeal herein heard and determined expeditiously.

16. The Respondent avers that the instant application was not merited rather it was filed to frustrate the Respondent and delay finalization of the matter.

17. The Respondent avers that half the judgment sum plus costs should be paid out to her within a time to be specified by the court and the other half be deposited in court.

18. The parties filed written submissions which I have considered.

19. The Applicants submitted that the judgment herein was delivered on 20/7/2022 against the Applicant. The Applicants were held 100% liable and the plaintiff was awarded Kshs 3,345,750/= for fatal injuries. The Applicants were dissatisfied with the judgment and filed an appeal on quantum vide Kericho HCCA No 42 of 2022.

20. The Applicants contended that a decretal sum of Kshs 3,345,750/= was manifestly excessive as to amount to an erroneous estimate of damages. The Applicants therefore argued that they had an arguable appeal with high chances of success and therefore if stay of execution was not granted the appeal would be rendered nugatory.

21. The Applicants contended that an excessive award was made by the lower court which was not proportionate to the injuries sustained.

22. The Applicants therefore submitted that the appeal herein was arguable and raised serious points of law and fact that warranted the court’s intervention on appeal.

23. The Applicants reiterated that in applications for stay pending appeal it is not a requirement to show that the appeal has high chances of success rather that it is arguable. The applicants cited the Court of Appeal case of Kenya Revenue Authority v Sidney Keitany Changole & 3 others [2015] eKLR.

24. The Applicants contended that the multiplicand adopted by the trial court was not proved by way of evidence.

25. The Applicants reiterated that the Respondent’s means were unknown and it was unlikely that the Respondent will be capable of refunding the decretal sum in the event that the appeal succeeds, in which case the applicants would suffer irreparable loss or damage. The Respondent had not disclosed nor furnished the court with any documentary evidence to prove her financial standing. The applicants cited the case of Edward Kamau & another v Hannah Mukui Gichuki & another [2015] eKLR.

26. The Applicants submitted that the were willing, ready and able to furnish security in the form of a bank guarantee for the decretal sum of Kshs 3,000,000/= pending hearing and determination of the appeal. They cited the case of Samuel Chege Githua & another v Sophia Nyokabi Wambui [2011] eKLR.

27. The Applicants having satisfied all conditions set out in order 42 rule 6 implored the court to grant them an order of stay of execution pending hearing and determination of the appeal.

28. The respondent contended that the decree herein was a monetary decree and that there was no evidence that the appeal would be rendered nugatory in the event the decretal sum is released to the Respondent.

29. The Respondent contended that she was opposed to a bank guarantee as a mode of security and more specifically whereby the purported bank guarantee is unattested.

30. The Respondent reiterated that in the event that the court determines that stay can be granted, in an effort to balance the rights of the parties, the court can order part payment to the Respondent and the other part can be deposited either in court or in a reputable bank pending hearing and determination of the appeal.

31. The Respondent contended that since the applicants were only appealing on quantum, it was only fair and prudent to have part of the judgment sum released to the Respondent. The Respondent cited the case of Amoke Otieno Pascal v Melvin Anyango Owour (2022) eKLR, Bomet Civil Appeal No. E11 of 2022.

32. The sole issue for determination in this application is whether the Appellants/Applicants should be granted stay pending appeal.

33. The applicable law is order 42 rule 6 (1) and (2) which states as follows;“(1)No appeal or second appeal shall operate as a stay of execution or proceeding 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 subrule (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.”

34. In the current case, it is in the interest of justice to allow the Appellants /Applicants to exercise their right of appeal.

35. It is the duty of the court to balance the interests of the parties. This was the position of Warsame, J (as he then was) in Samvir Trustee Limited v Guardian Bank Limited Nairobi (Milimani) HCCC 795 of 1997 where he expressed himself as hereunder:“The court in considering whether to grant or refuse an application for stay is empowered to see whether there exist any special circumstances which can sway the discretion of the court in a particular manner. But the yardstick is for the court to balance or weigh the scales of justice by ensuring that an appeal is not rendered nugatory while at the same time ensuring that a successful party is not impeded from the enjoyment of the fruits of his judgement…At the stage of the application for stay of execution pending appeal the court must ensure that parties fight it out on a level playing ground and on equal footing in an attempt to safeguard the rights and interests of both sides. The overriding objective of the court is to ensure the execution of one party’s right should not defeat or derogate the right of the other. The Court is therefore empowered to carry out a balancing exercise to ensure justice and fairness thrive within the corridors of the court. Justice requires the court to give an order of stay with certain conditions.”

36. I hereby allow the application on condition that half the decretal sum be deposited in an interest earning account jointly held by counsels for both parties within 30 days of this date.

37. The costs of the application to abide the appeal.

DELIVERED, DATED AND SIGNED AT KERICHO THIS 16TH DAY OF DECEMBER, 2022. A. N. ONGERIJUDGE