[2022] KEHC 2477 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT GARISSA

CIVIL APPEAL NO. E002 OF 2021

OSMAN GODHANA WARIO alias OSMAN GODHANA...................................APPELLANT

VERSUS

JMN (a minor suing through next friendJKK)....................................................RESPONDENT

RULING

1. Osman Godhana Wario alias Osman Godhana (the appellant/applicant herein) filed an application dated 21st March 2021 seeking for several orders as follows and some of which are spent;

a. Spent.

b. Spent.

c. That this Honourable Court be pleased to stay execution of the judgement and decree in Garissa Magistrate’s Court Civil Suit No. 31 of 2019 pending the hearing and determination of the appeal herein.

d. That this Honourable Court do allow the appellant/applicants to furnish the court with reasonable security in the form of a bank guarantee.

e. Spent.

f. That the costs of the application abide the outcome of the appeal.

2. The application was supported by grounds on the face of the application and the Supporting Affidavit of Kelvin Ngure wherein he stated that he is the owner of Motor Vehicle Registration Number KAV 502D at whose instance the suit in GarissaCMCC O. 31 of 2019 was defended. He stated further that the trial court entered judgement on 24th February 2021 in favour of the Respondent where it awarded general damages of Kshs. 400,000/= and special damages of Kshs. 5,500/=.

3. The Applicant is aggrieved by the said judgement and urges that the appeal is arguable and with overwhelming chances of success. Further he is apprehensive that the Respondent may proceed to execute the judgement and decree after lapse of forty-five (45) days granted by the trial court which action may render the appeal nugatory.

4. He further states that the decree is for a substantial amount and is apprehensive that should the Respondent execute, the said sum may not be recoverable from the Respondent should their appeal succeed. His insurer is ready and willing to furnish the court with a bank guarantee of a reasonable amount as security.

5. The Respondent opposed the application vide his Replying affidavit dated 15th June 2021. He stated that the application is a gross abuse as it offends the principles of Section 3 (b) and (c) of the Judicature act as the jurat ends in a different page with the rest of the affidavit. The face of the application is alleged to be supported by Stephen Gitau Lepose whereas the same is supported by Kelvin Ngure.

6. That the deponent who swore the affidavit deponed on matters not within his knowledge which offends the provisions of Order 19 Rule 3 of the Civil Procedure Rules. That the deponent also swore the same on the doctrine of subrogation which is not applicable in these circumstances.

7. Further that the applicant has not satisfactorily explained the delay in filing the application 39 days after lapse of the stay of execution. That the applicant is in the process of procuring the certificate of costs and decree to initiate execution proceedings.

Analysis and Determination

8. The application as drafted contains numerous errors one notable and outstanding error are the two names said to belong to the deponent of the affidavit in support of the application. The application itself alludes to a supporting affidavit of Stephen Gitau Leposa, the affidavit is however sworn and signed by Kelvin Ngure, who describes himself as the owner of motor vehicle registration Number KVA 502 D yet in the submissions the deponent is stated to be the claims manager of Directline Assurance Co. Ltd, the appellant’s insurer.

9. The respondent took issue with the officer from the insurance swearing the affidavit. In particular he argues that the said officer deponed to matters that were not within his knowledge the issue is whether the deponent lacked capacity to sear the affidavit.

10. Order 19 Rule 3 of the Civil Procedure Rules that;

“Matters to which affidavits shall be confined [Order 19, rule 3. ]

(1) Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove:

Provided that in interlocutory proceedings, or by leave of the court, an affidavit may contain statements of information and belief showing the sources and grounds thereof.”

In ObonyoWalter Oneya & Another vs Jackline Anyango Ogude(Suing as the Administrator of the Estate of Fredrick Odhiambo Sewe (Deceased) [2018]eKLR the court dealt with the issue of whether the supporting affidavit was defective and incompetent for want of capacity by the deponent. Githua J at paragraph 11 held that: -

“The fact that an insurer is required to be notified of the proceedings giving rise to the judgement and to satisfy the judgement obtained against its insured leave no doubt that the insurer has an interest in the proceedings leading to the judgement and in any appeal against that judgement and consequently, it is my view that a legal officer or any authorized officer of the insurer would be seized of information pertaining to the proceedings in the primary suit and any appeal lodged against the decision or decree arising therefrom and has capacity to swear an affidavit in either the suit or the appeal. In any case there is no law that provides that only co-litigants can swear affidavits in a matter. In my view, any person with information relevant to an action and who is duly authorized can swear an affidavit in the action...”

In Tahmeed Coach Limited & 2 others v Salim Mae Peku (Legal Representative of Sadiki Salim Peke (Deceased)) [2014] eKLRChitembwe J held that: -

“It is clear that this is a matter arising from a road accident. Ordinarily it is the insurance company that would be called upon to satisfy the decretal sum. The insurers of the accident vehicle were served with a statutory notice and although the “insurance company is not a party to the suit, it is interested in the outcome of the dispute. It is therefore, in order for one of the officers of the insurance company to swear an affidavit in support of the application. The legal officer of the insurance company cannot be held to be a stranger to the dispute.”

In Njuguna Ngugi v Godfrey Adhiambo Oyoo [2021] eKLR the Court equally held as follows;

“Counsel for the respondent dealt with the issue of subrogation but in my view the insurer is not seeking any compensation from the respondent. All what the insurer is doing is to safeguard its interest so that exorbitant awards are not made against its insured clients which awards will ultimately be forwarded to the insurance company for settlement. Even if the insurance company is not a party to the suit, it has a legally recognized interest in the matter and I see no good reason why its staff who have knowledge about the dispute cannot swear affidavits in relation to the case. Should the applicant fail to settle the decretal sum, the respondent has the leeway of filing a declaratory suit against the insurer. It cannot be held that the insurer should remain silent until when involved in a declaratory suit or in a subrogation claim. Pauline Waruhiu has averred about what she knows about the dispute and what she has been informed by the counsel on record for the insured. She can be summoned for cross-examination and in my view she is competent to swear the affidavit in support of the application. I do find that the application is properly supported by two affidavits….”

11. From the above cited authorities, it is clear to this court that Kelvin Ngige being the claims manager of the Appellant’s insurer was competent to swear the affidavit. Further the Respondent did not pin point the averments that were not within the disposition of the deponent. The authorities Simon Isaac Ngui – Vs – Overseas Courier Services Ltd [1998] Eklr & P.M.M. Private Safaris V Kevin Ijatia [2006] eKLRthat were of the opinion in such an instance the application ought to be dismissed are distinguishable since they were determined before the enactment of the 2010 Constitution and the Civil Procedure Act 2010 which mandates this court to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act.It would equally be draconian to dismiss the application based on the errors alluded to and for the reasons advanced by the Respondent.

12. Grant of stay of execution pending appeal is provided for under Order 42 Rule 6 of the Civil Procedure Rules,as follows:

(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) …

(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.”

13. Looking at the proceedings the applicant has been slow in bringing the application. Judgement was entered on 24/2/2021. The application was filed on 4/5/2021 twenty-six days after lapse of the stay Orders in the trial court.

14. None of the parties made available the trial court’s proceedings and the judgement to help the court discern the likely merits or otherwise of the appeal. It is therefore not possible for the court to decide whether the appeal shall be rendered nugatory or not.

15. Further the Memorandum of Appeal only challenges the quantum awarded by the trial court. That being the case the Respondent ought not to be denied entirely the fruits of his judgement.

16. In the interest of justice, and to avert any likely loss, the court will grant a conditional stay. The court however finds a bank guarantee in the circumstances of this case not appropriate.

17. Based on the above the court will only allow a stay of execution pending Appeal on the following conditions; -

(i) Half of the decretal amount be paid to the respondent within the next sixty (60) days of this ruling.

(ii) The remainder to be deposited in a joint interest earning account in the names of the advocates of the parties within the said sixty (60) days.

(iii) The Record of Appeal be filed and served within the said sixty (60) days.

(iv) In default of these conditions the stay granted herein to lapse on expiry of the said sixty (60) days.

(v) Cost of the application to abide the outcome of the appeal.

DATED SIGNED AND DELIVERED THIS 10TH DAY OF FEBRUARY, 2022

ALI-ARONI

JUDGE