[2009] KEHC 1221 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT

AT NAIROBI

MILIMANI LAW COURTS

Civil Appeal 305 of 2009

STEPHEN KINUTHIA KAMAU…..…………………..APPELLANT

VERSUS

MARY WANGUI MUNGAI…..…..………………. RESPONDENT

R U L I N G

1. Stephen Kinuthia Kamau hereinafter referred to as the applicant, is the appellant in this appeal. He has moved this Court by way of a Notice of Motion dated 30th June, 2009 seeking an order of stay of execution of the judgment issued on 10th June, 2009 together with all consequential orders, in Nairobi CMCC 6709 of 2004, pending the hearing and determination of his appeal. The applicant maintains that unless the order sought is granted, his appeal which is arguable shall be rendered nugatory, and the applicant will suffer substantial loss.

2. The applicant has sworn an affidavit in support of the application in which he expresses his apprehension that the respondent may execute the judgment. He maintains that if that happens, chances of recovery of the decretal sum in the event of his appeal being successful cannot be guaranteed. The applicant has also sworn a supplementary affidavit in which he reiterates that unless the orders sought are granted, he will suffer substantial loss. He explains that the judgment of the lower Court required him to refund all the rental income received from the suit premises from November, 2003. Since the respondent’s means of income is not known, recovery of the amount if paid, may be impossible. The applicant further maintains that he is the one who completed the rental building on the suit premises, and therefore there is no justification in denying him the rental income. Counsel for the applicant further submitted that the respondent’s counsel should not be given audience as he was not properly on record.

3. Mary Wangui Mungai who is the respondent to the appeal has sworn a replying affidavit in which she contends that the application lacks merit, and is only meant to deny her the fruits of her judgment. The respondent maintains that the applicant has not shown that he will suffer any loss that cannot be compensated for adequately in monetary terms. It was contended that the property subject of the suit is immovable property, whose recovery in the event of the appeal succeeding is not too remote. Counsel for the respondent maintains that they were properly on record having appeared for the respondent in the lower Court.

4. I have given due consideration to this application. Firstly, with regards to the competence of the respondent’s counsel, it is evident from the memorandum of appeal that the respondent’s counsel upon whom the memorandum was to be served was C.K. Mwithia and Company Advocates. This is the same firm that prepared and filed the respondent’s replying affidavit. Mr. Mutahi who appeared for the respondent, explained that the firm of C.K. Mwithia and Company was the same firm which appeared for the respondent in the lower Court and therefore the firm did not need to come on record again. I concur with that explanation. Indeed, the applicant’s counsel in recognition of that fact indicated that service of the memorandum of appeal was to be effected on that firm. I therefore reject the submission that the advocates for the respondent are not properly on record.

5. Under Order XLI Rule 4(2) of the Civil Procedure Rules, an order for stay of execution pending appeal can only issue on the following conditions:

(i) Where the court is satisfied that substantial loss will result to the applicant unless the order of stay of execution is issued;

(ii) That the application has been made without unreasonable delay;

(iii) That the applicant has provided or is ready to provide such security as the court may order for the due performance of the decree.

6. In this case, the application for stay of execution was lodged on 10th July, 2009. This was about 4 weeks after judgment of the lower Court and 3 weeks after the appeal was lodged. The applicant has not given any explanation for this delay, nevertheless the delay is not so inordinate as to be inexcusable. With regards to the issue of substantial loss, the applicant has explained that the judgment of the lower Court required him inter alia, to refund the rental income received from the year 2003. Although the exact amount has not been stated, it is evident that the amount is likely to be substantial. There being no evidence of the respondent’s means, the applicant’s fear that the respondent may not be able to refund the money if paid, is not unfounded. Further it is apparent that the suit involves sale of Plot No.1941 Dandora Phase IV. It is only fair and just that orders of stay of execution do issue during the pendency of appeal, to preserve the interests of both parties.

7. Accordingly, I will issue an order of stay of execution of the judgment of the lower Court issued on 10th June, 2009 and all consequential orders pending the determination of this appeal on the following conditions:

(i) That the applicant shall deposit the rent received from Plot No. 1941 Dandora IV, since the year 2003, into this Court within 30 days from the date hereof.

(ii) The applicant shall file and serve a record of appeal within 90 days from the date hereof.

(iii) The applicant shall take all necessary action to facilitate the speedy disposal of this appeal. In the event that the appeal is not disposed off within 12 months from the date hereof, the order of stay of execution pending appeal shall stand discharged unless otherwise extended by the court.

Dated and delivered this 2nd day of November, 2009

H. M. OKWENGU

JUDGE

In the presence of: -

Gichuhi for the appellant/applicant

Advocate for the respondent, absent

Eric, court clerk