[2017] KEHC 1493 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL APPEAL NO. 289 ‘B’ OF 2010

ROSE JENDEKA IMBUKA & HENRY IMBUKA

(Both suing as the Administrators and legal

Representatives of the Estate of the late

SAMUEL BULIMO ENDEKWA).............RESPONDENT APPLICANT

- VERSUS -

JOHN WANDO KAMAU.......................APPELLANT/RESPONDENT

RULING

The Respondent/Applicant moved this Court vide a Notice of Motion dated 25th January, 2017 under the provision of Order 42 Rule 6 and order 51 Rule 1 of the Civil Procedure Rules. The applicant seeks orders that;

(a) the Honourable Court be pleased to set aside its Orders of stay of execution granted on the 30th day of July, 2012

(b) the Court be pleased to order the release of the decretal sum of Kshs2,045,856/= deposited in court to the Respondent/Applicant; and

(c) The costs of the Application be borne by the Appellant/Respondent.

The application is supported by the Supporting Affidavit of Namada Simoni dated 25th January, 2017. Basically, the application is based on the orders of this court issued on 11th July, 2012 allowing the Appellant/ Respondent’s application for stay of execution of the judgment of the lower court delivered on 23rd June, 2010. In the said orders of 11th July, 2012 granting stay pending appeal, the court directed that the decretal sum be deposited in court and later on be transferred to a joint interest earning account to be opened and operated by both counsels. The bone of contention is that the Appellant deposited the said amount with Court but no joint account has ever been opened to date and the Applicant herein blames the Respondent for failure to co-operate in opening the joint account 5 years down the line. As such the Applicant prays for the stay orders to be vacated and the decretal sum released to the Respondent/Applicant.

The application is opposed by the Respondent vide an undated Replying Affidavit filed on 15th February, 2017 and sworn by ANNODONGO, the Claims Manager, at Directline Assurance Company Limited, the instructing Client on behalf of the Appellant/Respondent. The Appellant opposes the application and avers that after the issuance of the stay orders, the Appellant’s advocates have requested the Executive Officer of the Lower court on numerous times to supply them with the typed proceedings of the lower court, judgment and decree, to enable them file the record of appeal. Annexed to the Affidavit are letters to that effect. Therefore, the Appellant avers that the delay in prosecuting the Appeal was occasioned by the lower court. In any case, the Appellant states that the delay is not inordinate as to prejudice the respondents and the same can be compensated by an award of damages and costs. The Appellant further avers that the application is fatally and incurably defective for reasons that order 51 Rule 1 does not provide for dismissal of appeals for want of prosecution and that the Respondent can only move the Court either to set the appeal down for hearing or apply for dismissal for want of prosecution under Order 42 Rule 35, which in any case, provide for directions to have been given first and since that is not the case herein, the orders sought should not be entertained.

A further Affidavit sworn by Pauline Waruhiu, the General Claim Manager at Directline Assurance Company Limited, was filed wherein, she averred that a joint interest earning account in the name of Kairu & McCourt Advocates and Namada & Co. Advocates (Account number xxxxx. Code name 41101) was created and the Executive Officer of Chief Magistrates Court was notified via a letter dated 24th March, 2014,

This application was canvassed by way of written submissions wherein the Respondent / Applicant submitted that in the further Affidavit sworn by Pauline Waruhiu, the letter to the Executive Officer which is annexed thereto, bears no stamp to show whether it was received and no evidence has been produced to show that there was a follow up. The Appellant submitted that the Applicant has not demonstrated that he has means of income to repay the decretal sum in the event the appeal succeeds, and that the appellant will suffer irreparable loss if the money is released to the Respondent. The Appellant further submitted that the hardship and prejudice likely to be occasioned to the Appellants in this matter is greater than the hardship to be occasioned by the Respondent since the Appellant’s Appeal will be rendered nugatory if stay orders are vacated.

I have read and considered the Application together with the Affidavits filed and the submissions by both parties. Contrary to the Respondent’s averments and submissions, the Application does not seek to have the appeal dismissed for want of prosecution. From the orders sought in the application, it is evident that the applicant seeks to have the stay orders vacated and the decretal sum deposited in court released to the Applicant/Respondent.

This application is brought under Order 42 Rule 6 which provides that,

“6. (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 thereon 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.”

The last clause of the above provision is clear that 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. Though this rule applies to orders issued by the court from whose decision the Appeal is preferred, it is my view that the court should concern itself with the substance and not form. The fact that the Application is brought under the wrong provisions of the law should not prejudice the applicant. In any event, the same has also been brought under sections lA, lB, 3 and 3A of the Civil Procedure Act.

From the Replying Affidavit of the Appellant, it is evident that the decretal sum was properly deposited in court, however, there is no clear evidence to show that the joint interest earning account was opened as ordered by the Court. The letter to the Executive Officer which is annexed to the Further Affidavit show the account name and the account number of the alleged joint account. There are no details of the bank and the Branch in which the account was opened. Even though the Appellant states that the transfer from court to the joint account could not be effected on the ground that the lower court file has not been forwarded, I find that the Appellant has not been keen in following up the file from the Lower court. Further, as submitted by the Applicant, there is no evidence that the letter was served on the Executive Officer as the same is not properly received.

From the aforegoing, it is clear that the Appellant obtained orders of stay and went to sleep. He has been enjoying the said orders at the expense of the Respondent. The fact that the money has been deposited in the court is neither here nor there. Yes, I agree that the money acts as security for the due performance of the decree in the event that the Appeal does not succeed but that does not give the Appellant a right to delay the prosecution of the Appeal.

It is trite that justice looks both ways.

In the premises, I do hereby set aside the orders of stay of execution granted on 30th July, 2012. I decline to grant prayer 2 of the application but the respondent is at liberty to execute the decree. Costs of the application are awarded to the Applicant.

It is so ordered.

Dated, Signed and Delivered at Nairobi this 15thday of November, 2017

.........................

L. NJUGUNA

JUDGE

In the presence of:-

…………….for the Appellant/Applicant

……………….……….for the Respondent