[2018] KEHC 6329 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 154 OF 2015

PAUL KIBUGI MUITE................................ 1ST APPELLANT/APPLICANT

EDITH NDETI MUITE .............................. 2ND APPELLANT/APPLICANT

-V E R S U S –

NATIONAL BANK OF KENYA LTD......................................RESPONDENT

RULING

1) Paul Kibugi Muite and Edith Ndeti Muite, the 1st and 2nd appellants’ respectively took out the motion dated 12th February 2018 in which they sought for inter alia, an order for stay of execution of the judgment/decree given on 27th July 2013 by the Chief Magistrate’s Court, at Milimani, Nairobi. They also sought for a stay of further proceedings in the Chief Magistrate’s Court pending appeal. The motion is supported by the affidavit and supplementary affidavit of Paul K. Muite sworn on 27th April 2018. When served with the aforementioned motion, National Bank of Kenya Ltd, the respondent herein, filed the replying affidavit of Paul Chelanga’ to resist the motion.

2) When the motion came up for interpartes hearing, learned counsels appearing in this matter recorded a consent order to have the motion disposed of by written submissions. I have considered the grounds stated on the face of the motion and the facts deponed in the affidavits filed in support and against the application. I have further considered the rival submissions. The background of this motions appears to be largely short and straightforward. The history is substantially set out in the respondent’s written submissions. The respondent filed an action against the appellant before the Chief Magistrate’s Court vide the plaint dated 23rd December 2002 whereof it sought for payment of ksh.1,440,858/30 with interest at the rate of 23% p.a until full payment of the debt. The aforesaid debt is said to have arisen out of visa card no. [particulars withheld]. After several adjournments of the hearing the case, the matter was heard on 5th June 2012 in the absence of the appellant and his counsel but with notice. The court’s initial date of judgment scheduled for 13. 07. 2012 was postponed to 27th July 2012 when it was eventually delivered.

3) On 11/6/2013, the appellant was served with a notice of entry of judgement with a draft decree. On 30. 10. 2013 the appellant was served with a notice to show cause of the same date. Upon receipt of the notice to show cause, the appellants sought for more time to file a response. Instead of filing a response the appellants opted to file an application seeking to set aside the trial court’s judgment delivered on 12. 7.2012. The application seeking to set aside judgement was dismissed on 26. 5.2014. Thereafter the respondent was directed to issue a fresh notice to show cause against the appellants. A fresh notice to show cause was issued for 14. 4.2015. On the aforesaid date, the appellants filed an application seeking for a stay of the notice to show cause and for leave to appeal out of time against the trial court’s judgement delivered on 27. 7.2012.

4) Having given in detail the background of application before this court, I now turn my attention to the merits or otherwise of the motion. The principles to be considered in an application for stay are clearly spelt out in Order 42 rule 6 of the Civil Procedure Rules. First, an applicant must show that the application for stay was filed without undue delay. Secondly that an applicant must show the substantial loss he would suffer should the order for stay be denied. Thirdly, the provision for security for the due performance of the decree must be considered.

5) On the first principle, the appellants are of the view that they filed the application within 6 days from the date Justice Mbogholi directed the appellants to file a formal application. The respondent on the other hand is of the submission that the decision sought to be impugned was made on 27. 7.2012 while the appellants’ motion was filed 6½ years after the decree was made, therefore the motion was not timeously made and no explanation offered. A cursory look at the memorandum of appeal will reveal that the appellants are challenging both the judgment delivered on 27. 7.2012 and the ruling delivered on 26. 5.2014. It would also appear that leave to appeal was given by Justice Mbogholi thus extending the appellants’ lifeline over the issue. In my view, I find that there was delay in filing the current motion. However the detailed explanation given by the appellants to explain the delay makes me find that the delay is excusable.

6) The question as to whether or not the appellants will suffer substantial loss if the order for stay is denied was substantively discussed by both sides to this application. The 1st appellant in his affidavit has deponed that the respondent has sought for issuance of a warrant of arrest against them using the notice to show cause. It is argued that the appellant’s personal liberty and freedom of movement may be curtailed. This according to the appellants is substantial. The respondent on the other hand has argued that there is no averment that the respondent will not be in a position to refund the decretal sum if it was paid to it if the appeal succeeds, therefore the appellants cannot be said to suffer substantial loss. I have considered the two rival arguments. There is no dispute that the respondent seeks to execute the warrants of arrest. If this happens, then the liberties and freedoms of the appellant will be curtailed before the appeal is heard. I am satisfied that the appellants have shown the substantial loss they would suffer if the order for stay is refused.

7) The third principle is the provision of security. The respondent has pointed out that the appellants have not offered any form of security for the due performance of the decree. The respondent urged this court to order the appellants to deposit the entire decretal sum plus interest if it deems fit to grant the order for stay. The appellants have beseeched this court not to impose any condition for a deposit of the decretal sum because the judgment was irregular. The law has given the court a wide discretion to determine the mode of security to be provided even in instances like in this case where the applicants do not make any offer to provide security. The amount now owing and due as per the decree and certificate of costs is way above ksh.5,000,000/=. However the principal sum claimed in the plaint stood at ksh.1,440,858/30. I think in the circumstances of this case, a fair order to make is direct the appellants to deposit the principal sum of kshs.1,440,858/30 since the claim on interest remains a contested issue. At the beginning of this ruling, this court clearly outlined the history behind this motion. The history depicts the appellants as litigants who are hell bent to delay the conclusion of this matter. They have filed a plethora of applications which have procrastinated the conclusion of this dispute. Therefore, I will only grant an order for stay for a limited period.

8) In the end, the motion dated 12th February 2018 is allowed as follows:

i. An order for stay of execution of the judgement/decree and proceedings is given pending appeal to last for 120 days from the date of this ruling on condition that the appellants deposit a sum of ksh.1,440,858/30 in an interest earning account in the joint names of learned advocates and or firms of advocates appearing in this matter within 30 days from the date hereon.

ii. In default of the condition stated in (i) above, the motion will be treated as having been dismissed.

iii. The appeal to be placed before a judge in chambers for admission and further directions within 30 days from the date hereof.

iv. The appeal to be fixed for hearing and determination with 60 days from the date of admission.

v. Costs of the motion to abide the outcome of the appeal

Dated, Signed and Delivered in open court this 18th day of May, 2018.

J. K. SERGON

JUDGE

In the presence of:

.................................................... for the Appellant

..................................................... for the Respondents