[2022] KEHC 18128 (KLR)

Subira Shipping Company v China Communication & Construction Company Limited (Civil Appeal 3 of 2020) [2022] KEHC 18128 (KLR) (5 October 2022) (Ruling)

Neutral citation: [2022] KEHC 18128 (KLR)

Republic of Kenya

In the High Court at Garsen

Civil Appeal 3 of 2020

SM Githinji, J

October 5, 2022

Between

Subira Shipping Company

Appellant

and

China Communication & Construction Company Limited

Defendant

(Being an appeal from the Ruling of Hon. T.A.Sitati – Principal Magistrate in Lamu Civil Suit No.6 of 2018 delivered on 30th July, 2020)

Ruling

CORAM:Hon. Justice S. M. GithinjiMr Omwancha Advocate for the AppellantMr Aboubakar Advocate for the Respondent 1. For determination is the Appellant’s Notice of Motion dated August 17, 2020 seeking the following orders;1. Spent.2. That this honourable court do issue a stay of execution of the ruling and orders delivered and issued on July 30, 2020 by the Principal Magistrate’s Court in Civil Suit No 8 of 2018 Subira Shipping Limited Company vs China Communication and Construction Company Ltd.3. That upon inter-partes hearing, there be stay of execution of the ruling and orders delivered and issued on July 30, 2020 by the Principal Magistrate’s Court in Civil Suit No 8 of 2018 Subira Shipping Limited Company vs China Communication and Construction Company Ltd.4. That costs of this application be in the cause.

2. The application is premised on the sworn affidavit of Mohamed Suleiman Ibrahim a Director of the Appellant stating that the Appellant has lodged an appeal against the Ruling and order of Principal Magistrate’s Court in Civil Suit No 8 of 2018 Subira Shipping Limited Company vs China Communication and Construction Company Ltd issued on July 30, 2020.

3. It was deposed that the respondent herein is intending to execute for recovery of Kshs 1,223,610 that was awarded by the trial court of which would occasion substantial loss to the respondent and the appeal rendered nugatory.

4. The respondent filed grounds of opposition dated August 25, 2020 opposing the application on the following grounds;1. The Applicant has failed to demonstrate that it shall suffer substantial loss if stay is not granted. In particular, it has failed to disclose its daily, monthly and or annual turnover to prove its liquidity or financial status.2. It has failed to deposit in court the decretal sum as security or in the alternative it has failed to provide security for the decretal sum as is required by Order 42 Rule 96 (2) (b) of the Civil Procedure Rules, 2010. 3.The Applicant’s Appeal has no real chance of success as it is clear that the trial court had no jurisdiction to hear and determine this suit in the first instance.4. The appeal shall not be rendered nugatory if the application is disallowed and the plaintiff pays the decretal sum to the Respondent as the Respondent is a reputable International construction company currently under a contract to construct the Lamu Port and in the event the appeal succeeds it will easily refund the money back to the applicant.5. The Application is without merit.

Analysis and Determination 5. I have perused the submissions of the parties and I do not wish to reproduce the same. The only issue arising for determination is;1. Whether the court should grant stay of execution pending appeal.

6. On the prayer for stay of execution of judgment or decree of the trial court pending the hearing and determination of the intended appeal, Order 42 Rule 6(2) of theCivil Procedure Rules applies and provides that:“No order for stay of execution shall be made under sub rule (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; andb)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.”

7. In JMM v PM [2018] e KLR it was stated:“As I said, I accept the proposition that if it is shown that execution or enforcement would render a proposed appeal nugatory, then a stay can properly be given. Parallel with that is the equally important proposition that a litigant, if successful, should not be deprived of the fruits of a judgment in his favor without just cause.”

8. Order 42 rule 6 of the Civil Procedure Rules grants this court as an appellate court, as well as the trial court wide discretion to stay execution of decrees pending appeal. I have looked at the Memorandum of Appeal; it is clear to me that it is not frivolous. It raises triable issues on whether or not the trial magistrate misdirected himself as alleged in the Memorandum of Appeal. The decree is a money decree and therefore the question of the appeal being rendered nugatory if successful does not arise as it is not shown that the Respondent (decree holder) is so impecunious that he cannot refund the decretal sum awarded if the appeal succeeds. The applicants have not demonstrated that they stand to suffer irreparable loss in the event the sought stay is not granted.

9. It’s not in dispute that the respondent is a reputable International Construction Company currently under a contract to construct the Lamu Port. In my view such a company can easily raise the decretal sum of 1,223,610/= incase the appeal succeeds.

10. A successful party in a suit should not be deprived the right to enjoy the fruits of the judgment unless for a justifiable cause. Having weighed the foregoing, I do find the application in want of merit and is hereby dismissed. Costs be in the cause.

RULING READ, SIGNED AND DELIVERED VIRTUALLY AT MALINDI THIS 5TH DAY OF OCTOBER, 2022. .....................S.M. GITHINJIJUDGEIn the Presence of; -1. Mr Omwancha for the Appellant2. Mr Aboubakar for the Respondent says he was not aware of it today and does not with his presence recorded though is present......................S.M. GITHINJIJUDGE5. 10. 2022