[2022] KEHC 16357 (KLR)

Rutto v Kiprono & another (Suing as administrators of the Estate of Daniel Chemweno Kosgei (Deceased)) (Civil Appeal E061 of 2022) [2022] KEHC 16357 (KLR) (16 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16357 (KLR)

Republic of Kenya

In the High Court at Eldoret

Civil Appeal E061 of 2022

RN Nyakundi, J

December 16, 2022

Between

Vincent Kibiwott Rutto

Appellant

and

Linah Jepkorir Kiprono

1st Respondent

Victor Kiprotich Kosgei

2nd Respondent

Suing as administrators of the Estate of Daniel Chemweno Kosgei (Deceased)

Ruling

Coram: Justice R. NyakundiMwakio, Kirwa & CO. AdvKimondo Gachoka & CO. Adv 1. By a Notice of Motion dated 27/6/2022, the Applicant, Vincent Kibiwott Rutto, seeks the following orders: -1. Spent.2. Spent.3. That there shall be stay of execution of the judgement and decree of Kshs.1,667,560/= plus costs and interest delivered in Iten PMCC No.2 of 2020; Linah Jepkorir Kiprono (Suing as Administrators of the Estate of DANIEL CHEMWENO KOSGEI - Deceased) V Vincent Kibiwott Rutto pending the hearing and determination of Eldoret HCCA No. E061 OF 2022; Vincent Kibiwott Rutto Vs. Linah Jepkorir Kiprono & Victor Kiprotich Kosgei (Suing as Administrators of the Estate of DANIEL CHEMWENO KOSGEI - Deceased).4. That this Honourable Court allow the Appellant/Applicant to furnish the Court with security in the form of Bank Guarantee from Family Bank or any other reputable Bank of good standing.5. That costs of this application be provided for.

2. The application is premised on the grounds set out therein id further supported by the affidavit deponed by Vincent Kibiwott Rutto on 27/6/2022. 3. The application is opposed vide the Replying Affidavit sworn by Linah Jepkorir Kiprono on 8/7/2017.

4. The court on 12/7/2022 issued directions that the application be canvassed vide written submissions. The Appellant/Applicant filed submissions dated 4th June 2020. The Respondent filed submissions dated 29th June 2020.

The Applicant’s case 5. The Applicant’s case is that on 20/4/2022, judgment in Iten PMCC No. 2 of 2020 was delivered in favour of the Respondents. Being dissatisfied with the said judgement the Applicant has filed an appeal mainly on the issue of quantum.

6. The Applicant deposed that his Advocate on record, recorded a consent with the Respondents’ Advocate upon agreeing on the issue of costs and the stay period was extended further to 29/6/2022. The Applicant deposed that the orders of stay in force are due to lapse on 29/6/2022. The Applicant is apprehensive that in light of the foregoing the Respondents are likely to execute the decree to his detriment.

7. The Applicant contends the Respondent’s financial ability is not known and they may not be able refund the decretal amount in the event the appeal succeeds and thus he stands to suffer substantial loss. The Appellant further contends that the appeal may be rendered nugatory.

8. The Applicant is willing to furnish security in the mode of Bank Guarantee from Family Bank.

9. The Applicant maintains that the application has been brought without undue delay.

Respondents’ Case 10. In a nutshell the Respondents argued that the Applicant’s lacks merits and does meet the threshold to warrant the grant of stay of execution pending appeal. The Respondents maintain that if the Court is inclined to grant stay of execution, then the Applicant should deposit half of the decretal sum and costs in Court and pay the other half to the Respondents.

Determination 11I have considered the application, the response thereto and the respective parties’ submissions. In my view, the only issue for determination is whether an order of stay of execution pending appeal should be granted.

12. The grant of stay of execution pending appeal is provided for under Order 42 Rule 6 of the Civil Procedure Rules. The relevant part thereof 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 appeal case of 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.(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.(3)…(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.” 13. From the foregoing, 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, and (c) 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. See Antoine Ndiaye v African Virtual University[2015] eKLR.

14. The exercise of the court’s discretion when considering an application for stay of execution is premised on principles set out in Butt v Rent Restriction Tribunal [1982] KLR 417 where it was stated: -

15. The power of the court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.

16. The general principle in granting or refusing a stay is; if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should that appeal court reverse the judge’s discretion.

17. 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.

18. The court in exercising its discretion whether to grant [or] refuse an application for stay will consider the special circumstances of the case and unique requirements. The special circumstances in this case were that there was a large amount of rent in dispute and the appellant had an undoubted right of appeal.

19. The court in exercising its powers under Order XLI rule 4(2)(b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security for costs as ordered will cause the order for stay of execution to lapse.”

20. It is not contested that the Application was brought without undue delay, therefore this requirement has been satisfied and I need not say more.

21. Regarding substantial loss, the Applicant submitted that unless orders of stay of execution are granted then, the Respondents will proceed to execute the decree in their favour while there is a pending appeal. The Applicant contends that the Respondents financial ability is unknown and thus he is likely to suffer substantial loss in the event the appeal succeeds. The Applicant is apprehensive that the Respondents will be unable to refund the decretal sum should the appeal succeed.

22. The Respondents on the other hand argued that the Applicant has not demonstrated what substantial loss would be occasioned should the stay not be granted. The Respondents maintain the onus of proof of substantial loss lies with the Applicant and that he has substantially failed to discharge this requirement.

23. The Court’s task is to balance the competing interests of the decree holder as against that of the judgement debtor lest I deny the Respondents of the fruits of their judgement on the one hand, or hinder the Appellant’s right of appeal on the other. The Appellant urges that the Respondents financial muscle is unknown and therefore he is not convinced they would be able to repay the decretal sum should the Appeal succeed.

24. From the record it evident that the Applicant is willing furnish security for the decretal amount vide a Bank Guarantee whereas the Respondents have been silent on the issue of their ability to refund the decretal amount in the event the appeal succeeds. The Applicant has attached a Bank Guarantee marked “VKR4” from Family Bank. The nature of the Bank Guarantee is that it will be used to provide security for awards and/or costs awarded in various court cases or claims against Directline Assurance Company Limited. The Applicant has although failed to establish or explain his relationship with Directline Assurance. It is my finding that the Bank Guarantee as presented by the Applicant is insufficient to be considered as security for the due performance of the decree.

25. While appreciating that the Applicant’s appeal in mainly on the issue of quantum. I am persuaded to strike a balance between the competing interests of the Applicant and those of the Respondents by ordering that the Applicant pays half of the decretal sum being Kshs.833,780/= to the Respondents while the other half be deposited in a joint interest earning account in the name of the parties Advocates on record.

26. Consequently, I allow the Applicant’s prayer for stay of execution but on condition that the Applicant pays the Respondents Kshs.833,780/= being one half of the Kshs.1,667,560/= awarded by the trial court and held in the joint interest holding account operated by Counsel for both parties. The remainder of the decretal sum shall remain in the joint interest holding account pending the determination of the intended appeal.

27. In those circumstances, the Notice of motion dated 27/6/2022, be and is hereby allowed on condition that the Appellant pays half of the decretal sum of Kshs.1,667,560/= being Kshs.833,780/= to the Respondents within forty-five (45) days from today’s date. For the avoidance of doubt, in the event the Applicant shall default on the requirement hereinabove, the conditional stay of execution shall automatically lapse.The costs of this application to abide the outcome of the appeal.It is so ordered.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 16THDAY OF DECEMBER, 2022. ............................R. NYAKUNDIJUDGE(xxxx.com, xxxx.co.ke)