[2022] KEHC 13742 (KLR)

Rabote (Suing as the Legal Representative of the Estate of Leonard Taabu Rabote Deceased) v Juma (Civil Appeal 44 of 2022) [2022] KEHC 13742 (KLR) (14 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13742 (KLR)

Republic of Kenya

In the High Court at Siaya

Civil Appeal 44 of 2022

RE Aburili, J

October 14, 2022

Between

Sprocer Awuor Rabote (Suing as the Legal Representative of the Estate of Leonard Taabu Rabote Deceased)

Appellant

and

Stephen Omondi Juma

Respondent

(Being an Appeal from Judgment and decree of the Hon S W Mathenge, Senior Resident Magistrate delivered on August 31, 2022 in Bondo PMCC no 62 of 2019)

Ruling

1. This ruling determines the appellant’s Notice of Motion dated September27, 2022 seeking the following orders:1. Spent2. Spent3. That costs of this application be provided for.4. That this honourable court be pleased to grant interim orders of stay of execution of the judgment and or decree delivered on August 31, 2022 and taxation proceedings in Bondo PMCC no 62 of 2020 pending the hearing and determination of this appeal.

2. The grounds upon which the application is predicated, which grounds are replicated in the supporting affidavit sworn by Joan Turgut advocate on September 27, 2022 are that on August 31, 2022, judgment was delivered in Bondo PMCC no 62 of 2020 where the trial court held the appellant herein 100% for kshs 762,203. 60 with costs and interest.

3. That the trial magistrate then granted a temporary stay of execution of decree for 30 days which stay had since lapsed and that therefore the respondent decree holder is likely to commence execution process.

4. That the appellant was aggrieved by the said judgment and award which is substantial and that therefore should the execution proceed, the appellant stands to suffer irreparable loss and prejudice the appeal, which appeal raises triable issues and which is likely to be rendered nugatory.

5. That the appeal as filed has high chances of success hence it is in the interest of justice and fairness that the orders sought are granted.

6. Finally, that the applicant is ready and willing to provide a bank guarantee from Family Bank as a security for stay of execution pending the hearing and determination of the appeal.

7. In the supporting affidavit, the appellant’s counsel deposes that she believes that the respondent is a person of straw and may not be in a position to make good any loss/damage incurred as suffered by the appellant if the decree appealed against is enforced and the appeal ultimately succeeds.

8. Further, that the appellant’s insurance company being Directline Assurance Co Ltd is a reputable company of means and that by dint of their right of subrogation are willing and capable of furnishing a bank guarantee for the due performance of the decree pending the hearing and determination of this appeal.

9. That there has been no delay in filing of this application and that this court has inherent power to grant the orders sought so as to enable the ends of justice to be met.

10. Opposing the application for stay of execution of decree issued in the lower court, the respondent Sprocer Awuor Rabote filed a Replying affidavit sworn on October 7, 2022 and which affidavit is in the form of written submissions and legal arguments which is contrary to the established law and practice that affidavits may not contain legal arguments. This is because order 19 of the Civil Procedure Rules, provides that affidavits shall be confirmed to such facts as the deponent is able to prove. Order 19 rule 3 (1) of the Civil Procedure Rules, 2010 provides that:“Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove: Provided that in interlocutory proceedings, or by leave of the court, an affidavit may contain statements of information and belief showing the sources and grounds thereof.”

11. The affidavit sworn by the respondent cites legal provision, legal principles and legal authorities both statutory and judicial pronouncements thereby making it a submission and not an affidavit. I must therefore deal with it’s validity on record first. On the face of it, the affidavit by the respondent provides legal arguments and not factual matters. The matters expressed therein are legal opinions.

12. In my humble view, such an affidavit cannot help the court reach a fair decision. If the applicant wanted this court to hear written submission, she should have filed written submissions separate from an affidavit which is full of legal opinions and arguments.

13. In the cases of Albany Taylor & Wendy Taylor vs Stella Nafula & Christopher TaylorCA 352/2004; Kamlesh Pattni Vs Nassir Ibrahim Ali & Others HCC 63/2009; Manchester Outfitters Vs Prann Galot & 3 Others & Lila Vadgawa Vs Mansukhala Shantilal Patel, the courts made it clear that expressions of law are not to be contained in an affidavit; submissions are not to be entertained in an affidavit; and that hearsay evidence is for exclusion and so are legal opinions.

14. Order 19 rule 3(2) of the Civil Procedure Rules stipulates that the costs of every affidavit which shall unnecessarily set forth matters of hearsay or argumentative matter or copies of extracts from documents, shall, unless the court otherwise directs, be paid by the party filing the same.

15. Under order 19 Rule 6 of the Civil Procedure Rules, the court may order to be struck out from any affidavit any matter which is scandalous, irrelevant and oppressive.

16. See Cammille Vs Meralli (1966)EA 411, Mayers & Another Vs Akira Ranch Limited [1974] EA 169 where the court held that:“where an affidavit contains averments of apparent importance in the proceedings but which transgress the requirements of order 19 rule 3(1) and in regard to which the leave of court under the proviso to that sub rule has not been obtained, the retention of such averments in the affidavit contrary to the expressed wishes of the opposing party would be oppressive within the meaning the Order.”

17. However, in Kamlesh M D Pattni vs Nassir I Ali & 2 Others [2005]eKLR, the court held that only the offending portions of the affidavit would then be rejected, not the entire affidavit.

18. This court had the opportunity to decide on a similar issue in Mbugua & Mbugua Advocates v Kenindia Assurace Co Ltd[2014] eKLR when this court observed that whereas the affidavit of counsel for the party contained depositions derived from personal knowledge of the subject therein and the applicable law, however, the said paragraphs which the respondent/applicant counsel took issue with were fraught with verbose argumentative propositions, expressions of opinions and law coupled with decided cases relied on; and that it would be oppressive to allow such matters to masquerade as factual opinions.

19. The court proceeded and struck out certain offensive paragraphs in the affidavit sworn by counsel and expunged them from the record for being scandalous, offensive/irrelevant and oppressive to the adverse party.

20. The court rejected contentious that the offensive paragraphs could be cured by application of the oxygen principle and article 159 2(d) of the Constitution, citing several Court of Appeal and Supreme Court decisions.

21. This case is in parimateria to the above stated case which this court handled just about 2 months upon my appointment as Judge of this Court. The law has not changed.

22. In an application for stay for execution of decree pending appeal, the principles applicable are clearly stipulated in law at order 42 rule (6)(2) of the Civil Procedure Rules that the opposing party need not even file an affidavit in opposition. Grounds of opposition or even an oral response with authorities, filed and served upon the applicant’s counsel in advance is sufficient. Similarly, a compedium of authorities in the affidavit is unnecessary. The court follows the established principles in determining the merits of such applications if the parties decide not to agree on the stay of execution of decree pending appeal.

23. Having said so, I must proceed and do the necessary, by striking out the offensive and oppressive paragraphs in the respondent’s Replying affidavit sworn on October 7, 2022. These paragraphs struck out are paragraphs 9, 10, 14, 18(c), 19, 22, 23, 25, 26, 27, 30, 31, 32 and 34.

24. I shall now proceed to outline the basis of the opposing to the appellant’s application for stay of execution of decree in the lower court pending appeal, noting that at the oral hearing of this application a day ago, both parties counsel relied on their respective grounds/affidavits in support and against the application and urged this court to grant a conditional stay.

25. From the surviving paragraphs of the respondent’s affidavit, the respondent deposes in contention that the application for stay is filed in bad faith and with inordinate delay as the judgment in the lower court was delivered on August 31, 2022,the application is dated September 29, 2022 and was only filed on September 4, 2022 yet the bill of costs is due for assessment on October 19, 2022; yet the applicant was present in court when judgment which is impugned in this appeal was delivered.

26. In addition, it was deposed that this application is premature because the costs form part of the warrants for execution, which costs have not been assessed until October 19, 2022 hence the applicant is engaging this court in an academic exercise.

27. That it would be an abuse of this court’s process and mockery of the authority of this court if stay of execution of a non existent execution process and that the applicant shall not suffer any loss if the orders sought are denied.

28. That the annexture JT2 which is a Bank guarantee from Family Bank is misleading to this court as it is dated February 18, 2020 and valued at only sh 50m hence not relevant to this case as article 3 refers to matters such as tender security bonds and performance bonds hence it relates to other cases that are underwritten by the Directline Assurance.

29. The respondent further challenges the validity of the annexed Bank guarantee which has no seal of the bank, not witnessed by the bank’s advocates and has not offer and acceptance signed by the bank attached to the guarantee. She urges this court not to accept the annexed bank guarantee and instead direct that a fresh one only specific to this case /appeal be issued to last the duration of the appeal; or to deposit the whole of the decretal sum in a joint bank account held by both counsel for the parties.

30. The respondent further deposed that in any event, since the appeal is against liability only, and not quantum, then the appellant acknowledges that she is entitled to a higher quantum, hence she should be paid at least 70% of the decretal sum inclusive of costs. On stay of assessment of costs, it is deposed that costs are part of the judgment and are therefore inseparable.

31. That since a decree will be required to be part of this appeal’s record, then the assessment of costs should proceed.

32. The respondent urged this court to dismiss the application with costs or order for payment of 70% of the decretal sum inclusive of costs and the balance of 30% be deposited in a joint bank account to be held by both parties’ counsel.

Determination 33. I have considered the application, grounds, supporting affidavit and the Replying affidavit whose paragraphs I have sustained upon striking out of the offensive, oppressive paragraphs.

34. In my view, the main issue for determination is whether the appellant has made out a case for stay of execution of the judgment of the lower court delivered on August 31, 2022 and if so, on what terms should this court grant stay,

35. An applicant for stay of execution of decree pending appeal is obliged to satisfy the conditions set out in order 42 rule 6 (2) of the Civil Procedure Rules namely: (a) that substantial loss may result to the applicant unless the order is made, (b) that the application has been made without unreasonable delay; and (c) such security as the court orders for the due performance of such decree or order as may ultimately be binding on the applicant has been given by such applicant. Finally, the court may grant stay pending appeal for sufficient cause being shown, applying the overriding objective principle of the law under section 1A of the Civil Procedure Act. See James Wangalwa & Another V Agnes Naliaka Cheseto [2012]eKLR.

36. In this appeal, the applicant asserts that he will suffer substantial loss if the over 700,000/= in damages awarded to the respondent by the lower court together with attendant costs which are yet to be assessed are paid to the respondent who is a person of straw such that should the appeal succeed, and (that it has such high chances of success), then it shall be rendered nugatory as there is no evidence that the respondent is capable of refunding the decretal sum unlike the applicant who is insured by a well known reputable insurance company which has the means to pay up the decree should the appeal not be successful.

37. The applicant asserted that the application had been filed without undue delay and that they are willing to offer a bank guarantee with Family Bank, as security for the due performance of the decree.

38. The respondent on the other hand has trashed the appellant’s purported bank guarantee which is for 2020 for lack basic security features including a seal, attestation by the bank’s counsel and being merely a document generally used in respect of other matters not decree of the court hence, she urges the court to disregard that invalid document.

39. She further contends that the application is filed belatedly late; and that no loss has been demonstrated to occur to the applicant if stay is not granted. She urges that if the court is to order for stay, then it should be conditional upon the decretal sum being deposited in a joint interest earning account of both counsel or 70% of the judgment sum be paid to her and 30% be deposited in a joint interest earning account since the appeal only challenges liability not the quantum of damages awarded.

40. This court has stated over and over that the purpose of stay of execution of decree pending appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising his undoubted right of appeal, if successful, is not rendered nugatory.

41. However, in doing so, the court should weigh this right against the rights of a successful litigant who should not be deprived of their fruits of their judgment lawfully obtained. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.

42. Such grant or refusal to grant stay of execution pending appeal is discretionary. The court must balance the interests of both parties to the appeal. (See RWW Vs KW[2019]eKLR.

43. In this case, the respondent has spoken too much of what she has been told by her counsel but she has not addressed the court on whether she is capable of refunding the decretal sum if paid, should the appeal succeed.

44. For that reason, I find that the appellant might suffer substantial loss if the appeal, which I do not find frivolous, is successful.

45. On delay, the impugned judgment was delivered on August 31, 2022 and this application was filed on October 4, 2022 after the lapse of the initial stay granted by the lower court.

46. Costs have not been assessed. Assessment is due on October 19, 2022. The appeal was filed on September 19, 2022 which was within 30 days of the judgment in the lower court as stipulated in section 79G of the Civil Procedure Act.

47. In my view, the application for stay was not filed after an inordinate delay. In addition, I am not persuaded that it is premature simply because the costs have not been assessed.

48. As correctly pointed out by the Respondent, the court cannot stay assessment of costs because they form part of the decree for this appeal to progress. The said costs once assessed and there is a stay of execution of the judgment which includes costs, then execution of costs is equally stayed.

49. As to the security for the due performance of decree, the appellant has offered provision of a bank guarantee with Family Bank and annexed a copy of a bank guarantee facility between Family Bank and Directline Assuarance Company Limited. The respondent has trashed that annexture as being invalid. I agree that the document annexed may have been used by another individual and is irrelevant to this case as it is dated February 18, 2022 and is not even signed or sealed by the bank. It is also not a bank guarantee but an application for such bank guarantee and the approval for the said facility is not available on the face of it.

50. This court cannot rely on such as a document for purposes of court proceedings as these. It is never the intention of any court of law to render judgments which are barren or incapable of being executed.

51. Nonetheless, should this court be inclined to grant stay, it is entitled to order the terms of such stay as it deems fit and that is the spirit of order 42 rule 6(2) of the Civil Procedure Rules.

52. In other words, this court is not bound by the type of security offered by an applicant for stay pending appeal. It can make appropriate orders that serve the interest of justice, taking into consideration the fact that money depreciates due to inflationary trends unless it is kept in a fixed interest earning account for the period of the appeal.

53. Taking into account all the above factors and balancing the interests of both parties to this appeal, I make the following orders:1. I grant stay of execution of decree and payment of costs to be assessed in Bondo PMCC no 62 of 2019 pending the hearing and determination of this appeal conditional upon the appellant depositing into a joint fixed deposit interest earning account the entire decretal sum of kshs 762,203. 60 together with the costs of the suit as may be assessed on October 19, 2022, within 30 days of this ruling provided that where there is delay of assessment of the costs, then the appellant shall only deposit the decretal sum within 30 days of today and also prepare and serve a complete record of appeal and submissions on appeal within 30 days of today.

2. In default, the stay herein granted shall lapse and the respondent shall be at liberty to execute decree.3. Costs of this application shall be to the respondent in any event and shall be costs in the appeal.

55. I so order.

DATED, SIGNED AND DELIVERED AT SIAYA THIS 14TH DAY OF OCTOBER, 2022R E ABURILIJUDGE