[2017] KEHC 1464 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYAAT NAIROBI

CIVIL APPEAL NO. 415 OF 2017

PATRICK MUSAU KSYULA...............................APPELLANT/APPLICANT

VERSUS

CLARA AMISI ABU (Suing through next friend

PATRICIA MUTHINA ABU MUKHOBI)..........................1ST RESPONDENT

AFRICAN POPULATION AND

HEALTH RESEARCH CENTRE......................................2ND RESPONDENT

RULING

Before this Court is an application dated 12th September, 2017 for stay of execution of the judgment delivered on 13th July, 2017. The application is supported by the Affidavit of PATRICK MUSAU KISYULA, the Appellant herein, on the grounds that the Appellant’s appeal is likely to succeed, that unless the stay is granted the 1st Respondent will proceed to execute and that the appellant is apprehensive that the 1st respondent may not be in a position to refund the decretal sum in case the appeal is succeeds. As security, the Appellant avers that his employer is ready to pay the decretal amount on the appellant’s behalf in the event that the appeal fails.

The application is opposed by the Respondents who filed a Replying Affidavit dated 26th September, 2017 and sworn by PATRICIA MUTHINA ABU MUKHOBI, the Plaintiff’s next of kin, who depones that the Appellant has not satisfied the conditions for grant of stay of execution, that he is guilty of laches and the appellant has not shown what substantial loss he would suffer if execution proceeds.

The application was canvassed by way of oral submissions in court on 11th October, 2017. The Appellants Counsel, Mr. Adere submitted that the application has been filed without undue delay and the Appellant is prepared to abide by any security that the court may impose. He further submitted that in the event that the Appeal is successful, the Respondent will not be able to pay back the decretal sum as it may not be possible to trace him. The Respondents’ Counsel Mr. Musyoki in opposing the application submitted that there was undue delay in filing the application in that since the judgment was delivered, the Appellant did not take any step until they extracted the decree on 19th September, 2017. The Respondent further submitted that the decree is a monetary one and as such no loss is likely to be suffered and that the appellant has not offered sufficient security.

The requirements for granting an order of stay of execution are provided for under Order 42 Rule 6 of the Civil Procedure Rules which are;

a) That the application has been made without unreasonable delay;

b) That security for costs has been given; and

c) That substantial loss may result to the Applicant unless the order for stay is made.

The above requirements were also outlined by Ringera J (as he then was) in Global Tours & Travels Limited Winding Up Cause No. 43 of 2000.

The instant application was filed almost two months after the judgment was delivered. The question whether there has been unreasonable delay in making an application for stay or otherwise is something for the Court in its discretion to determine considering the circumstances of each case and in this case, a period of two months was not unreasonable delay.

The Appellant casts doubt on the ability of the 1st Respondent to reimburse the decretal amount in case the appeal succeeds as it might be difficult to trace him. This is a pertinent issue which the Respondent failed to address in his reply and submissions. When it comes to the issue of substantial loss, where the Appellant casts doubt on the ability of the Respondent to reimburse the decretal amount, it is a rule of the thumb that the respondent should show that he is capable of such reimbursement.

For an order of stay of execution to be granted, the court has to be satisfied that the applicant has met the requirements of Order 42 Rule 6. This was well emphasized in the case ofAntonie Ndiaye V. African Virtual University (2015) Civil Suit No. 422 of 2006where the Court held that:-

“The relief of stay of execution pending appeal is governed by Order 42 Rule 6 of the Civil Procedure Rules. The relief is discretionary although, as it has been said often, the discretion must be exercised judiciously, that is to say, upon defined principles of law, not capriciously or whimsically. Therefore, stay of execution should only be granted where sufficient cause has been shown, the Court should be guided by three prerequisites provided under Order 42 Rule 6 of the Civil Procedure Rules…”

In the interest of justice, the circumstances of this case calls for the exercise of my discretion in favour of allowing the application. Therefore, in allowing the application, I will direct the Appellant to deposit the decretal amount in a joint interest earning account to be opened by both counsels. The money to be deposited within 30 days from the date of this ruling failing which the stay order shall lapse.

Costs of the application shall abide the outcome of the Appeal.

Dated, Signed and Delivered at Nairobi this 8th day of November, 2017

…………………

L. NJUGUNA

JUDGE

In the presence of:-

………….for the Appellant/Applicant

…………for the 1st Respondent

…………for the 2nd Respondent