[2017] KEHC 2108 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

CIVIL APPEAL CASE NO. 34 OF 2017

Arising from the judgment and decree of E.W. WAMBUGU delivered on 27th March 2017 in Meru CMCC NO 2016 of 2004

(CORAM: GIKONYO J.)

PETER KIRIA.………..…………………………...….1STAPPELLANT

ALICE M. KANYITHIA…………………………...…2ND APPELLANT

Versus

THE EYE GROUP NEWSPAPER…………….....1ST RESPONDENT

PAULINE KAGWIRIA……………………...........2ND RESPONDENT

RULING

Stay of execution pending appeal

[1] The application dated 21st April 2017 seeks for stay of execution of the judgment and decree of Hon. E.W. WAMBUGU delivered on 27th March 2017 in Meru CMCC NO 2016 of 2004. The application is expressed to be made under Order 42 rule 6 of the Civil Procedure Rules. It is supported by the affidavit of 1st Appellant and grounds set out in the application. On 22nd of May 2017, the court directed that the application shall be canvassed by way of written submissions. Parties filed submissions in which they exemplified their respective standpoints, I shall discuss the submissions as well as the arguments presented before the court.

[2] The Applicant argued that this application was filed in time. And that they will suffer substantial loss if stay of execution is not granted as attachment of their equipment and tools would paralyze the operations and business of their clinic. In addition, they argued that the Respondents have not demonstrated that they will refund the decretal sum in the vent the appeal succeeds. Therefore, execution would render their appeal which is otherwise arguable, nugatory. It was stated that they are ready to provide any security that the court may require in order to grant stay of execution. They offered their land as security thereof and a valuation report is annexed. According to the Appellant, the Respondents will not suffer any prejudice. The Appellants filed submissions dated 19th June 2017 and supplementary submissions dated 14th July 2017 in support of the foregoing arguments. They also cited a number of judicial authorities to reinforce their position. These decisions are part of the record.

[3] The 2nd Respondent opposed the application and filed a Replying Affidavit thereto. Her main arguments were that; (1) the application herein was not filed timeously; (2) the Respondents are entitled to the fruits of their judgment; (3) the Appellants have not shown what substantial loss they will suffer; (4) the Appellants have not offered any security for the performance of the decree. Towards this end they argued that the security being pledged is not sufficient and is situate at Kiamuri- at the border of Tharaka and Imenti sub-tribe of Meru- which is a very insecure place. The value shown for the one acre is not reflective of the true value of land at that place. In any case, the Applicant is not the owner of the land and so the security is not of value to these proceedings. The 1st and 2nd Respondent similarly filed submissions dated 7th July 2017 and 5th July 2017 in support of the foregoing arguments. They also cited quite a number of relevant judicial authorities to reinforce their position. These decisions are part of the record.

DETERMINATION

Legal threshold

[4] I do not wish to re-invent the wheel. Under order 42 rule 6 of the Civil Procedure Rules, the Applicant must establish sufficient cause for stay of execution to issue. In determining sufficient cause, the court will consider whether:-

(a) The application for stay of execution was made without unreasonable delay;

(b) Substantial loss would occur unless stay of execution is granted; and

(c) The giving of security for due performance of the decree which might ultimately become binding on him.

[5] The whole purpose of stay pending appeal is not to impede the right of the judgment holder from realizing the fruits of his judgment, or to over-rate the right of the Appellant over that of the Respondent. Quite the opposite; it merely suspends the time required for performance of the particular obligations stayed or preserves status quo pending appeal. In our case,prevents substantial loss from occurring. On this, see what the court said in the case ofABSALOM DOVA VS.TARBO TRANSPORTERS [2013] eKLR:

‘’The discretionary relief of stay of execution pending appeal is designed on the basis that no one would be worse off by virtue of an order of the court; as such order does not introduce any disadvantage, but administers the justice that the case deserves. This is in recognition that both parties have rights; the Appellant to his appeal which includes the prospects that the appeal will not be rendered nugatory; and the decree holder to the decree which includes full benefits under the decree. The court in balancing the two competing rights focuses on their reconciliation which is not a question of discrimination’’.

[6] This is a money decree. It has been quite shown that the 2nd Respondent cannot refund the sum awarded. However, I do not wish to muzzle the right of appeal of the Appellants. Accordingly, I am persuaded to grant a stay of execution.

Security

[7] Now that I am satisfied that a stay is deserved, what type of security is reasonable in this case? Ideally, the security under Order 42 Rule 6 of the Civil Procedure Rule should be for the due performance of the decree that might ultimately be binding on the Applicant. I am, however, aware that:-

…insistence on a policy or practice that mandates security, for the entire decretal amount is likely to stifle possible appeals –especially in a Commercial Court, such as ours, where the underlying transactions typically tend to lead to colossal decretal amounts”.[See SEWANKAMBO DICKSON vs. ZIWA ABBY HCT-00-CC MA 0178 OF 2005, by the High Court of Uganda at Kampala]

I am also acutely alive to the fact that adequacy of the security is relevant consideration. On this see the case of Visram Ravji Halai & another vs. Thorntorn & Tupin [1963] Ltd Civil App. No NAI 15 of 199by the Court of Appeal of Kenya.Therefore the court should consider all relevant factors in the case in making the decision on the kind of security it should order for the due performance of the decree. The land being offered does not belong to the Applicants. It is also said to be in conflict-prone area and its value may be low. I should think realizing such security would be problematic. Accordingly, I do hereby order stay of execution shall be subject to the following conditions:-

(1) The 2ndAppellant shall deposit Kshs. 100,000 in an interest earning account in the names of both counsels within 90 days from today; and

(2) The 2ndAppellantshall also pay a sum of Kshs. 100,000to the 2nd Respondent within the next 90 days. It is so ordered.

Dated, signed and delivered in open court at Meru this 14th day of November, 2017

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F. GIKONYO

JUDGE

In the presence of:

Mr. Muthami advocate for Applicant

Mr. Murango advocate for Respondents

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F. GIKONYO

JUDGE