[2015] KEHC 6497 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL APPEAL NO. 528 OF 2014

PETER NYAGA MUVAKE..................................APPELLANT

VERSUS

JOSEPH MUTUNGA.....................................RESPONDENT

R U L I N G

1. Before me is a Notice of Motion dated 23rd December, 2014 seeking a stay of execution of a judgment delivered on 4th November, 2014 against the Appellant in Milimani CMCC No. 4109 of 2010 pending the hearing and determination of this appeal. The prayer for setting aside the judgment was withdrawn at the time the application came up for hearing.

2. The application is premised on the grounds that; judgment for the sum of KShs.2,038,450/= was entered against the Appellant on 4th November, 2014 to which the Appellant filed a notice of appeal and memorandum of appeal on 21st and 25th November, 2014 respectively; that no order of stay of execution of the said judgment is in place and that the Appellant is exposed to execution if the status quo is not maintained; that the decretal sum is a colossal sum of KShs.2,038,450/= and unless the orders sought are granted, the applicant will suffer great loss and damage if the Respondent proceeds to execute; that the Appellant is ready and willing to provide security as may be ordered by this court and that there was no unreasonable delay in filing the application.

3. The application is opposed vide the Replying Affidavit of Joseph Mutunga sworn on 14th January, 2015. He contended that the Appellant has not established any sufficient cause to warrant the exercise of discretion of this court to grant an order for stay of execution. That the Applicant has not demonstrated that he shall suffer substantial loss if the order of stay is not granted. That in any event, the Appellant has not proffered security for the due performance of the decree. It was contended that the decree having been issued on 4th November, 2014, the Appellant did not file the present application timeously. He pointed out that a regular interlocutory judgment had been entered against the Appellant on 29th July, 2011 and the same was set aside. That he believes this application is an attempt by the Appellant to trifle with this court with a view of denying the dependents of the deceased the benefits of the judgment. It was contended that the Appellant's obligation to settle the decretal sum arises from a lawful and regular judgment entered in his favour following a full trial and he is accordingly entitled to enjoy its fruits.

4. The application was canvassed by way of oral submissions. Mrs. Nasser Learned Counsel for the Appellant submitted that the decretal sum is colossal and the Appellant would suffer prejudice if the same is paid. She submitted that the Appellant came to court timeously since the application was filed on 23rd December, 2014 and the Memorandum of Appeal on 25th November, 2014. She stated that the appeal would be rendered nugatory if the order of stay is not granted and that the Appellant is ready and willing to furnish security as indicated at paragraph 10 of the supporting affidavit. She urged that the application should be allowed.

5. Mr. Odera Learned Counsel for the Respondent on the other hand submitted that, the overriding objective is that disputes be dealt with justly and expeditiously. Citing the case of Thugge v. Kenya Commercial Bank Ltd [1990] KLR, counsel submitted that Order 42 of the Civil Procedure Rules is to the effect that the burden is on the Applicant to prove any particular fact. He relied on the case of Jethwa Vs Shah t/a Supreme Styles [1989] KLR on the submission that the Appellant had not discharged that burden. Referring to Lalji Bhimji Sanghani Builders & Contractors Vs Nairobi Golf Hotels Kenya Limited., Nairobi HCCC No. 1900 of 1995 and Diamond Trust Bank Kenya Ltd v. Peter Mailanyi & 2 Others [2006] eKLR, counsel submitted that the Appellant had not demonstrated the loss he would suffer if a stay was not granted. He cited the case of Southern Credit Banking Corporation v. Andrew Lepeita Sunkuli and Another., Nairobi HCCC No. 394 of 2002 for the contention that security must be provided which was not the case in the present application. He stated that the status of the insurance industry in the country was filed and to delay the enjoyment of the judgment b the beneficiaries of the estate by imposing a stay would be prejudicial. Counsel concluded that the application had not been brought timeously and no explanation for the delay has been tendered. He, therefore, urged the court to dismiss the application.

6. I have considered the depositions, submissions and the authorities cited.

7. Both application is based on Order 42 Rule 6 (1) and (2) Rules. This provision was considered in the case Peter Ondande t/a Spreawett Chemis v. Josephine Wangari Karanja [2006]eKLRwherein the court held that: -

“The issue for determination by this court is whether the applicant has established a case to enable this court grant him the order of stay of execution sought. For this court to grant stay of execution, it must be satisfied that substantial loss may result to the applicant if stay is not granted. Further, the applicant must have filed the application for stay of execution without unreasonable delay. Finally, the applicant must provide such security as may ultimately be binding upon him.”

8. Judgment was entered on 4th November, 2014 and the application was filed on 23rd December, 2014 which is more than forty (40) days after delivery of judgment. I have always held the opinion that an application for stay under Rule 6 of Order 42 should be filed within the period given for preferring an appeal to the High Court from the lower court that is 30 days for it to be said to have been filed timeously. To my mind, therefore, any application filed outside that period requires an explanation for the delay. In the present case, the application was filed after 40 days. No explanation was preferred for the delay. In this regard, the application was not filed timeously.

9. On the second principle on which ordinarily the applications for stay under Order 42 rule 2 depend, i.e. sufficient loss, an application is required to demonstrate through evidence the loss he stands to lose in the event the stay sought is not granted. The only statement in the Applicant’s Affidavit in support of this ground is to be found in paragraph 9 wherein he swore this: -

“9. That the decretal sum is colossal and I am bound to suffer great loss and damage if orders herein are declined.”

10. To my mind, it is not the quantum of the decretal sum that matters but the actual loss an applicant is to suffer that matters. This includes the inability of the Respondent to refund the same in the event the appeal succeeds. In the present application, not only did the Applicant fail to demonstrate the nature of the loss to be suffered, he never swore that the Respondent will be unable to repay the same if the appeal succeeds. In my view, it is only once an Applicant has discharged that burden, that he will suffer loss that is substantial and that the Respondent will be unable to refund the decretal sum, that the burden shifts to the Respondent to show that he/she is not a man of straw. That he will be able to refund the sum. In the present case, the applicant having failed to discharge that burden, I do not think any obligation rested upon the Respondent to prove his ability to refund the decretal sum.

11. On security, the Applicant has undertaken to give any security that this court would impose. To my mind, that is not enough, the Applicant having failed to satisfy the second principle giving security alone cannot help. It must be borne in mind that when a court is considering an application under Order 42 Rule 6, it must bear in mind the two competing interest, that is, that when a person is exercising his undoubted right of appeal, the appeal should not be rendered nugatory if successful and that a successful litigant should not be deprived the fruits of his hard earned victory.

12. In the premises, I find the application to be without and the same is hereby dismissed.

Dated and Delivered at Nairobi this 27th day of February, 2015.

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A MABEYA

JUDGE