[2022] KEHC 992 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. E616 OF 2021

PATRICK KOKI MUSAU...................................................APPELLANT/APPLICANT

VERSUS

DANIEL MWANIKI MUTUNGA.............................................................RESPONDENT

RULING

1. This ruling is premised on the Notice of Motion brought by the appellant/applicant herein and dated 6th December, 2021 supported by the grounds established on its face and the facts stated in the affidavit of the applicant, who sought the following orders:

i. Spent.

ii. Spent.

iii. THAT this Honourable Court be pleased to allow the applicant to deposit the log book for motor vehicle registration number KC 605Q Toyota Prado 2013 to the Honourable Court as security.

iv. THAT costs of the application be provided for.

2. The Motion is opposed by way of the replying affidavit sworn by the respondent on 21st January, 2022.

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. A brief background of the matter as drawn from the record is that the respondent filed a suit against the applicant before the lower court and sought for the sum of Kshs.2,400,000/= and a default penalty in the sum of Kshs.300,000 arising out of a breach of contract.

6. Upon the trial of the suit, the trial court delivered judgment on 27th August, 2021 in favor of the respondent and against the applicant, in the sum of Kshs.2,600,000/= plus costs of the suit and interest thereon.

7. Being aggrieved by the above decision, the applicant lodged a memorandum of appeal before the High Court to challenge it and also filed an application seeking an order for a stay of execution pending the hearing and determination of the appeal.

8. Upon hearing the parties, the court by way of the order made on 10th November, 2021 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 30 days from the aforementioned date.

9. Subsequently, the applicant brought the instant Motion.

10. 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.

11. In his supporting affidavit, the applicant states that he is unable to raise the decretal amount since he works as a Civil Servant at the County Government at Kitui but that he has a logbook for his motor vehicle registration number KC 605Q Toyota Prado 2013 valued at the sum of Kshs.4,000,000/= which he can avail as security.

12. The applicant further states that unless the order sought herein is granted, he stands to suffer irreparable loss, adding that the respondent has already commenced the execution process.

13. The above sentiments were echoed by Katunga, counsel for the applicant, save to add that the applicant undertakes to do a valuation of the abovementioned motor vehicle.

14. In reply, the respondent states that the applicant has not brought forth any grounds to warrant the order sought or to show the manner in which he stands to suffer substantial loss.

15. The respondent also states that if an order for a stay of execution is granted, he stands to suffer prejudice owing to the rising debt and yet he is lawfully entitled to the fruits of his judgment.

16. To buttress the above averments, Kimani advocate for the respondent argues that a consent order was recorded by the parties before the court on 10th November, 2021 and hence no sufficient reasons have been given for having the order set aside.

17. The advocate further argues that the proposed security is notsuitable in the circumstances since no valuation or official search has been undertaken in respect to the abovementioned motor vehicle.

18. The advocate concludes by submitting that the applicant is a man of means and therefore capable of raising the decretal amount, contrary to the averments being made.

19. On the subject of the consent order, upon my study of the record, it is apparent that on 10th November, 2021 the court merely gave directions on the disposal of the previous application seeking a stay of execution by setting out conditions for granting the same. There is nothing to indicate that a consent was recorded between the parties to that effect.

20. 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.

21. Upon my consideration of the reasons given by the applicant for seeking to have the condition for a stay of execution reviewed and/or varied, while I am alive to the sentiments raised and challenges experienced by the applicant, I find that the proposal to have him deposit a logbook for the motor vehicle in question as security is not suitable in the circumstances, since there is no way of establishing whether the value of the motor vehicle constitutes adequate security commensurate to the decretal amount, in the absence of a valuation report or any other credible evidence.

22. In arriving at the above finding, I am persuaded by the reasoning adopted by the court in the case of Simba Coach Limited v Kiriiyu Merchants Auctioneers [2019] eKLR among the authorities filed by the respondent, where it held that:

“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 vs. Lilian Munabi Nganga & 2 Others [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.”

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

24. Consequently, I hereby dismiss the Motion dated 6th December, 2021 with costs. Nevertheless, I hereby order that the timelines for compliance with the conditions for granting the order for a stay of execution order issued on 10th November, 2021 be and are hereby extended on the condition that the applicant deposits the entire decretal sum in a joint interest earning account in the names of the parties’ advocates/firm of advocates; or alternatively deposits the decretal amount in court within 60 days from today, failure to which the order for stay shall automatically lapse.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 28TH DAY OF MARCH, 2022.

…….….…………….

J. K. SERGON

JUDGE

IN THE PRESENCE OF:

…………………………………. FOR THE APPELLANT/APPLICANT

…………………………………. FOR THE RESPONDENT