[2022] KEHC 11978 (KLR)

Riley Services Ltd & another v Mukoka (Civil Appeal 101 of 2021) [2022] KEHC 11978 (KLR) (10 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11978 (KLR)

Republic of Kenya

In the High Court at Malindi

Civil Appeal 101 of 2021

SM Githinji, J

May 10, 2022

Between

Riley Services Ltd

1st Appellant

Riley Falcon Security

2nd Appellant

and

Stephen Mumba Mukoka

Respondent

(Being an Appeal from the Judgement of Honourable Dr. Julie Oseko (CM) delivered on the 17th November, 2021 in CMcc No.E109 of 2020 at Malindi)

Ruling

1. The appellants herein have filed a notice of motion application under certificate of urgency dated December 3, 2021 seeking the following orders: -

1. Spent2. That this honourable court be pleased to issue an order of temporary injunction restraining the respondent by itself, agents or assigns from executing a sum of Kshs 806,760/- as against the appellant pending the hearing and determination of this application.3. That this honourable court be pleased to issue an order of injunction restraining the respondent by itself, agents or assigns from executing a sum of Kshs 806,760/- as against the appellant pending the hearing and determination of the appeal.4. That this honourable court be pleased to grant an order of stay of execution of the Judgment dated November 17, 2021 pending the hearing and determination of the intended appeal.5. That the costs of this application be provided for. 2. The application is supported by the affidavit of Moses Kavisi Sworn on the 6th day of December, 2021. He deponed in his affidavit that judgment was duly delivered on the November 17, 2021 in favour of the respondent. That the applicant is aggrieved with the outcome of the judgment and has lodged a memorandum of appeal.

3. He also deponed that he is apprehensive that the respondent may proceed and initiate execution proceedings against it which will occasion loss as they will be condemned to pay the sum of Kshs 806,760/-. That the applicant has demonstrated a prima facie case to warrant the grant of a temporary injunction pending appeal and that the memorandum of appeal raises serious legitimate triable issues warranting the interrogation of the appellate court and the same may be rendered nugatory if the respondent herein proceeds and execute.

Response 4. The Respondent in response filed a replying affidavit sworn by his advocate Geoffrey Kilonzo on the 20th day of December, 2021. He asserted that judgment was issued by a competent court and for a stay of execution pending appeal to issue, the conditions set out in order 42 rule 6 of the Civil Procedure Rules must be met and the court must be satisfied that substantial loss would be suffered by the applicant.

5. It was his assertion that the applicant has not met the threshold for conditions necessary for grant of stay pending hearing and determination of the appeal and has not demonstrated evidence of substantial loss they are likely to suffer. He deponed that the appeal on record has no likelihood of success since it is frivolous and meant to be used as a vehicle to obtain stay of execution. He also deponed that the applicant is insured by a big company and should not be granted stay simply because he can furnish security but there is need to strike a balance so that it is not only him who benefits from an order of stay of execution.

Submissions 6. The appellant filed submissions on the 8th day of February,2022 it is his submission that the guiding law on stay of execution pending appeal is order 42 rule 6(1) and (2) of the Civil Procedure Rules. In addition to the said provisions, the discretionary power of the court is unfettered and extends beyond the handmaiden rules herein above in light of the overriding principles under section 1B of the Civil Procedure Act whose objectives are; the just determination of the proceedings, the official disposal of business of the court, the efficient use of the available judicial and administrative resources and the timely disposal of the proceedings in the court.

7. In light of the above principles, he relied on the authorities of Stephen Boro Gitiha v Family Finance Building Society & 3 Others, Civil Application No Nai 263 of 2009 and that of Kenya Commercial Bank Ltd v Kenya Planters Co- operative Union, Civil Application No Nai 85 of 2010.

8. The respondent on the other hand filed submissions on the 7th day of February, 2022. On whether the appellants have met the conditions for stay he submitted that a party seeking orders for stay of execution must satisfy the following conditions: -substantial loss may result to the applicant unless the order is made, that the application has been filed without unreasonable delay and security as may be ordered by the court has been provided for the due performance of the decree. He relied on the case of Kenya Shell Limited v Benjamin Karuga Kibiru & another(1986) eKLR where the court held that the applicant had not given to court sufficient materials to enable it to exercise its discretion in granting the order of stay. It is his submission that the applicants have not demonstrated substantial loss hence granting the orders sought by the applicants would occasion undue hardship and great prejudice to the Respondent. He directed the attention of the court to the case of James Wangalwa & Another Vs Agnes Naliaka Cheseto (2012) eKLR.

9. He also submitted that the respondent being a successful party should not be deprived of the fruits of the judgment for a reason of an appeal being preferred as held in the case of Misc Civil Case 20 of 2021 Hilaa Abdullah Amin Vs Saumu Umazi Binzi & Saha Dzuya Angatsi. Further he told the court that the appeal has no chance of success and that this application is only meant to buy time and block the respondent from enjoying the fruits of her judgment after suffering loss and damage from negligence of the applicant.

Analysis and Determination 10. I have considered the application, the response, as well as the parties’ submissions before me; and what I am basically being called to do is balance the interests of both parties in determining whether a stay of execution pending appeal should be granted.Grant of stay of execution pending appeal is provided for under order 42 rule 6 of the Civil Procedure Rules, the relevant part of which states as follows:“(1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereons as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.(2)No order for stay of execution shall be made under subrule (1) unless—(a)the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and(b)such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.(4)For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the rules of that court notice of appeal has been given.(6)Notwithstanding anything contained in subrule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.”

11. The court, in RWW Vs EKW [2019]eKLR, addressed its mind to the purpose of a stay of execution order pending appeal, in the following words:“The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.Indeed, to grant or refuse an application for stay of execution pending appeal is discretionary. The court when granting the stay however, must balance the interests of the appellant with those of the respondent.”

12. An applicant for stay of execution of a decree or order pending appeal is obliged to satisfy the conditions set out in order 42 rule 6(2), aforementioned 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, andc)That 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. 13. I wish to point out that the power of a court to grant or refuse an application for stay of execution is discretionary and the discretion should be exercised in such a way as to ensure that justice is done to all parties and in a manner that does not inhibit an appeal. In addition to this, the general principle is that if there is no overwhelming reason for denial, the stay must be granted so that an appeal may not be rendered nugatory.

14. The Court of Appeal in Butt Vs Rent Restriction Tribunal (1979) was of the opinion that a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the applicant at the end of the proceedings and a court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances of the case and its unique requirements.

15. The applicant herein has established that it will suffer substantial loss if the intended execution is not stayed. it also follows that if the respondent executes the judgment and the applicant’s appeal succeeds, the applicant will not only suffer substantial loss, but the appeal will also be rendered nugatory.

16. On whether the application was filed without unreasonable delay, I note it was filed in less than a month after the delivery of the judgment. The appeal was filed on December 8, 2021 soon after the delivery of judgement thus signaling the applicant’s interest in pursuing the appeal. The respondent’s counsel wrote to the applicant’s counsel on November 25, 2021 about the intention to execute and the applicant found it necessary to file the instant application. There is thus no inordinate delay on the part of the applicant.

17. I have had an opportunity to look at the memorandum of appeal and it shows that the applicant is appealing against quantum. In as much as I do not want to speculate on the outcome of the appeal and also in consideration that the respondent deserves something and might be unfair for him to leave this court empty handed, I direct as follows;a)Appeal be filed and served within 14 days from the date of the ruling herein.b)The sought stay is granted on condition that Kshs 400,000/= is paid to the respondent within 45 days from the date hereof.The balance of the decretal sum shall be deposited in an interest earning account in the joint names of the advocates for the applicant and the respondent within 45 days from the date of the ruling and in default the order ceases.c)That the costs of the application shall abide the outcome of the appeal and shall follow the cause.

RULING READ, SIGNED AND DELIVERED VIRTUALLY AT MALINDI THIS 10TH DAY OF MAY, 2022. ...................................S.M. GITHINJIJUDGEIn the Absence of;1. Musinga & Company Advocates for the Appellants2. Wambua Kilonzo & Co. Advocates for the Respondent