[2014] KEHC 3458 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT BUNGOMA

CIVIL APPEAL NO.145 OF 2010

ROBAI WASWA ….......................................APPELLANT

VRS

JUDITH WALUKANAaliasWANYONYI........RESPONDENT

(Appeal arising from judgment by Hon. R. O. Oigara, Senior Resident MagistrateinKimilili CRMCC No.50 of 2007)

RULING

1. The Appellant has applied to this Court vide a Motion on Notice dated 10th March, 2011 for stay pending appeal under Order 42 rule 6 of the Civil Procedure Rules.The motion is supported by the affidavit of Robai Waswa sworn on 10th March, 2011.

2. The grounds upon which the application is grounded are that the Respondent had obtained a judgment in her favour against the Appellant for Kshs.75,000/=; that costs had been assessed; execution would issue at anytime; that the Appellant had been aggrieved by the said judgment and had thereby preferred the current appeal; that the appeal had good prospects of succeeding; that she was only a house wife and could not raise the amount decreed against her and that she was willing to abide by reasonable terms and conditions as security for the grant of the stay.

3. In the written submissions on her behalf, it was argued that the court has unfettered discretion to grant a stay; that there was sufficient cause in the circumstances of this Case to grant a stay; these were enumerated as; the timeous filing of the application for stay; the inability of the Appellant to pay the decretal sum which will lead to execution being levied against her and that if the amount was paid to the Respondent, she would be unable to refund the same. The Cases of Gachii -vs- KBS (Msa) Ltd [1993] KLR 695 and Halai & Another -vs- Thontora & Turpin Ltd [1990] KLR 365were relied on by the Appellant in support of her contentions.

4. The application was opposed by the Respondent through her Replying Affidavit sworn on 19th October, 2011. She deposed that the appeal lacks merit; that the application was calculated to deny her the fruits of her litigation and that there was no evidence to show that she will be unable to refund the decretal sum if the appeal succeeded.

5. It was submitted on her behalf that stay would ordinarily not be granted in money decrees unless it is demonstrated that the Respondent cannot refund the same if the appeal is successful; that the Appellant had not demonstrated through evidence that the Respondent will not be capable of refunding the money if paid. The Case ofCaneland Ltd & 2 Others -vs- Delphis Bank Ltd NBI HCCC NO.344 of 1996 (UR) was relied in support of this submission. That no stay could be granted against an order for costs of Kshs.48,500/= awarded. Finally, it was submitted that there was no evidence that the Appellant would suffer irreparable loss if the stay was not granted.

6. I have considered the Affidavits, submissions on record and authorities cited.This is an application for stay under Order 42 Rule 6 of the Civil Procedure Rules. The exercise of the jurisdiction of the court under this order is discretionary. However, that discretion is fettered by three conditions. That the application must be made timeously, that an Applicant must demonstrate that he/she will suffer substantial loss unless the stay is granted and that the Applicant must give security for the due performance of the decree that will ultimately be binding upon the Applicant.

7. In the present Case, judgment was delivered on 2nd November, 2010, the Memorandum of Appeal was filed on 23rd November, 2010, the present application was filed on 15th March, 2012 therefore it was filed four (4) months and 13 days after judgment was delivered. In my view, that was not timeous. To my mind, the same should have been filed preferably within the period provided for filing an appeal against the judgment, i.e 30 days for it to have been said to be timeous.

8. As regards substantial loss, ordinarily there can be no substantial loss that can be suffered in money decrees unless it is demonstrated that the Respondent is a person of straw who cannot reimburse the decretal sum if it is paid over and the appeal is ultimately successful. The burden lies on the Applicant to show that the Respondent is not in a position to refund the money if it is paid over and if the appeal succeeds. See the Case of Caneland Ltd & 2 Others -vs- Delphis Bank Ltd CA No. Nai 344 of 1999 (UR).

9. However, it may be difficult for an Applicant to know the financial position of the Respondent with particularity. For example, it will be difficult for an Applicant to know the properties and or details of bank accounts of a Respondent. Those are matters that are only within the special knowledge of the latter. Accordingly, what the Applicant will be expected is to depone on oath that he verily believes that the Respondent may not be able to refund the money if it is paid over to him. In doing so, and if he has any special knowledge of any facts to prove such an assertion, the evidential burden thereby shifts to the Respondent to show that he is not a man of straw and will be able to refund the money if it is paid over to him.

10. In the present case, the Appellant did not aver that the Respondent is a lady of straw or that she will not be able to refund the decretal sum if the same is paid over to her and if the appeal succeeds. Having failed to make any such allegation in her statement of oath, the Applicant has not discharged her burden under Order 42, Rule 6. In any event, the Respondent swore, although without any evidence, that she will be able to refund the money if the appeal succeeds.

11. Finally, as to security, the Appellant has in her own words admitted that she is only a house wife. That she has no money to liquidate the decretal sum and that if the stay is not granted her household items will be attached. To my mind, with such evidence, to grant a stay order will be tantamount to condemn the Respondent unfairly and deny her the fruits of her judgment. The earlier the execution takes place the better. No better security can forthcome from such a party.

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

DATED and DELIVERED this 7th day of July, 2014.

A. MABEYA

JUDGE