[2022] KEHC 10507 (KLR)

Owino Okeyo & Co.Advocates v Kenya National Assurance (2001) Limited & another (Civil Suit 841 of 2003) [2022] KEHC 10507 (KLR) (Civ) (17 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10507 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Suit 841 of 2003

JK Sergon, J

June 17, 2022

Between

Owino Okeyo & Co.Advocates

Applicant

and

Kenya National Assurance (2001) Limited

1st Respondent

Chaka Agencies

2nd Respondent

Ruling

1. This ruling is premised on the notice of motion brought by the plaintiff/applicant herein and dated April 7, 2022 supported by the grounds established on its face and the facts stated in the affidavit of the applicant, who sought the following orders:i.The honourable court be pleased to review its orders made on March 9, 2022ii.The applicant be granted leave to deposit alternative security for costs inform of a log book for motor vehicle registration number KCS 005Xiii.The cost of this application be in cause.

2. The motion is opposed by way of the replying affidavit sworn on 13th May, 2022 by the Company Secretary of the 1st defendant/ respondent, Ms Tabitha Mwaniki.

3. The instant Motion was canvassed through brief oral arguments which were made by the parties’ respective advocates.

4. I have considered the grounds presented on the face of the Motion as well as the affidavits in support thereof and in opposition thereto.

5. The substantive issue that requires to be determined is whether this court can make an order to substitute the security and allow the application herein.

6. A brief background of the matter as drawn from the record is that the applicant filed a suit against the respondents before this court and sought for an order restraining the respondents from removing and carting away the applicant’s goods belonging to the applicant.

7. Upon hearing of the suit, this court delivered its judgment on October 29, 2021 in favor of the respondents and against the applicant, in the sum of Kshs.2,002,167/= plus costs of the suit and interest thereon.

8. Being aggrieved by the above decision, the applicant filed an application seeking an order for a stay of execution pending the hearing and determination of the intended appeal.

9. Upon hearing the parties, the court by way of the order made on March 9, 2022 gave directions for the applicant to deposit the decretal sum in a joint interest earning account in the names of the parties’ advocates or in court within 45 days from the aforementioned date.

10. Subsequently, the applicant brought the instant Motion.

11. Returning to the motion, it is clear therefrom that the applicant essentially seeking a review of the condition given by the court for the granting of an order for a stay of execution by allowing the applicant to deposit an alternative security.

12. In his supporting affidavit, the applicant states that he has tried all his best to raise the said sum of Kshs 2,175,432 but he has been unable to do so due to economic hardship brought about by the corona pandemic.

13. The applicant further states that he has secured a motor vehicle from a friend and is willing to deposit the original log book of motor vehicle registration number KCS 005X together with the valuation report which shows that the motor vehicle is worth Kshs 4,850,000 which is twice the security ordered by the court.

14. In reply, the respondent states that the applicant has not demonstrated any of the grounds that must be satisfied to warrant review of the Court ruling /order.

15. The respondent avers that the applicant is a man of immeasurable means who has successfully been running a Law firm for more than 20 years.

16. To buttress the above averments, Mwangi advocate for the respondents argued that the applicant has assets which can satisfy the decree and further he did not give a financial report on his law firm.

17. The advocate further argues that the motor vehicle is a movable asset which may be damaged by the accident.

18. The advocate concludes by submitting that the application is based on the wrong provision of the law and that it does not meet the conditions required in an application for review.

19. In the instant suit, this court made a determination on the interim application and made an order granting the applicant a conditional stay of 45 days upon deposit of the entire decretal sum in court. The applicant unable to pay the same has invoked the court’s inherent powers and now seeks to have the same substituted. In essence the applicant herein seeks for a review of the orders of this court. It should be noted that this application ought to have been brought under the provisions of order 45 of the Civil Procedure Rules, as held in Edward Mungai Waweru v Samson Ochieng Kagunda &another[2018] eKLR and Mwaura Karuga t/a Limit Enterprises v Kenya Bus Services Ltd & 4others [2015] eKLR.

20. As order 45 (1) of the Civil Procedure Rules provides that:‘Any person considering himself aggrieved—(a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.’

21. Regardless of the form, this court will consider the application as presented and make a determination thereon in the spirit of the provisions of article 159 (2)(d) of the Constitution of Kenya.

22. Upon my perusal of the record, it is apparent that the instant motion was brought before the lapse of the timelines set for compliance with the conditions set by the court. i am therefore satisfied that the motion has been brought without unreasonable delay.

23. It is the applicant’s position that it has not been in a position to deposit the decretal sum within the stipulated period and thus requests for the substitution of the security. The applicant invokes the inherent powers of this court and the provisions oforder 42 rule 6.

24. The applicant has put the value of the motor vehicle at Kshs 4,850,000. 00 since the said motor vehicle does not belong to him, the owner is at liberty of driving the said motor vehicle, disposing the same whenever he desires, it runs the risk of accidents, wear and tear or theft and should any of this happen then there would be no security for due performance in the event the appeal is lost.

25. Further the applicant is seeking to have the deposit of the decretal sum substituted with a motor vehicle logbook. It is their opinion that the same will be sufficient to settle the decree. In determining what security should be deposited courts are guided to make an order that will protect both parties in a suit. In Visram Ravji Halai &anor v Thorntorn & Tupin [1963] Ltd Civil App No NAI 15 of 1990, the Court of Appeal held that in making orders for security the court ought not to place the plaintiff in a position in which should the appeal fail, it would be difficult for plaintiff to realize the fruits of his litigation due to the inadequacy of the security ordered.

26. The court in Mwaura Karuga t/a Limit Enterprises v Kenya Bus Services Ltd & 4others [2015] eKLR was of the view that“… the security must be one which shall achieve due performance of the decree which might ultimately be binding on the applicant. The rule does not, therefore, envisage just any security. The words ‘’ultimately be binding’ are deliberately used and are useful here, for they refer to the entire decree as will be payable at the time the appeal is lost. That is the presumption of law here. Therefore, the ultimate decree envisaged under order 42 rule 6(2)(b) of the Civil Procedure Rules includes costs and interest on the judgment sum unless the latter two were not granted-which is seldom. The security to be given is measured on that yardstick.”

27. So is motor vehicle logbook an ideal security in the circumstances? The issue of a logbook being used as security for stay of execution of a decretal sum has been widely discussed by courts in others cases. In Lochab Brothers Ltd v Lilian Munabi Nganga & 2others [2007] eKLR, for example, the court dismissed a similar application to substitute security with a logbook, the court expressed the view that –‘there is no guarantee that by the time the appeal will be heard and determined the vehicle will be worth the same money or it be there at all. The vehicle is still under the control and use of the applicant. Many things can happen to it before the appeal is heard. It can be wasted and its value diminished or it can even be involved in an accident and be completely damaged. I am not saying that this is going to happen but it can happen. If that happens then there will be no security for the respondent to fall back on if the appeal is not successful. Deposit of motor vehicle log book is therefore not a satisfactory security.’

28. In the recent case of Esri Star Ltd &another v Sila Oweshiwani[2018] eKLR the court held that “a motor vehicle or a trailer, as in this matter, is the worst form of security that an applicant can offer with the aim of obtaining orders for stay of execution in a case involving a money decree.”

29. From the foretasted authorities, it is clear that a logbook is not and cannot be the ideal security in the circumstances owing to the circumstances and the uncertainties that it possesses in terms of how the respondents will recover the decretal sum. In an upshot, it is my humble opinion that the applicant herein has failed to provide sufficient reason to substitute the security as ordered by this court and as such the application cannot succeed.

30. That notwithstanding, upon balancing the competing interests of the parties, I find it reasonable and only fair for this court to enlarge the time required for the applicant to comply with the conditions for granting an order for stay of execution.

31. Consequently, I hereby dismiss the motion dated April 7, 2022with costs and extend by 60 days the timeline for compliance with the conditions for granting the order for a stay of execution order issued on March 9, 2022failure to which the order for stay shall automatically lapse.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 17TH DAY OF JUNE, 2022. ……………………….J. K. SERGONJUDGEIn the presence of:……………………………. for the Plaintiff/Applicant……………………………. for the 1st Defendant/Respondent................................... for the 2nd Defendant/Respondent