[2023] KEHC 25212 (KLR)

Thuo & another v Mwangi (Suing as the Wife and Personal Representative of the Estate of George Mwangi Kiguoya - Deceased) (Civil Appeal E010 of 2023) [2023] KEHC 25212 (KLR) (Civ) (10 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25212 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E010 of 2023

AN Ongeri, J

November 10, 2023

Between

Harrison Thuo

1st Appellant

Moses Muriuki Njeru

2nd Appellant

and

Caroline Waithereo Mwangi (Suing as the Wife and Personal Representative of the Estate of George Mwangi Kiguoya - Deceased)

Respondent

Ruling

1. The application coming for consideration in this ruling is the one dated 4/4/2023 brought under Sections 3A, 75, 78, 79G of the Civil Procedure Act and Order 22, 42 Rule 6(2), 11 and 13, Order 51 rule 1 of the Civil Procedure Rules, Sections 3A of the Civil Procedure Act and all enabling provisions of law seeking the following orders;i.That service of this application be dispensed with herein in the first instance by reason of its urgency.( Spent)ii.That stay of execution of the proclamation of Moonstar Enterprises Auctioneers dated 21st of March 2023 made in this matter and all other consequential orders granted against the 1st Appellant herein pending the inter parties hearing and determination of the 1st Appellant Applicationiii.That stay of execution of the proclamation of Moonstar Enterprises Auctioneers dated 21st of March 2023 in this matter and all other consequential orders granted against the Appellant herein until the hearing and determination of this Appeal Application.iv.That the judgment and decree against the Defendant entered on 15 December, 2022 be stayed and the directions be given on the hearing of the 1st Appellants Appeal herein and or the 1st Appellant Appeal be certified as been ready for trial.v.That in the alternative to prayer(iv) above there be directions to issue and notice under Order 42 Rule 12 of Civil Procedure Rulesvi.That the costs of this application be provided for.

2. The application is based on the following grounds;i.That the Hon. Magistrate delivered a judgment against the Defendant herein on the 15 December, 2022. ii.That at the first instance a stay of execution was granted for Thirty (30) days and to date the 1st Appellant will suffer substantial loss if a stay of execution is not granted of the proclamation made by Moonstar Enterprises Auctioneers dated 21" of March 2023,iii.That the appeal herein has a reasonable chance of success and if execution is carried out it will render the appeal nugatoryiv.That there has been no delay in bringing this application and the 1st Appellant are willing to abide by any conditions and terms of the court may deem fit to imposev.That there is amended memorandum and record of appeal is duly filed and served in this matter.vi.That the Honourable Court herein is clothed with discretionary powers to set stay decree and the Judgment entered on 15th December, 2022 to ensure the ends of justice are met in view of the prevailing circumstances.

3. The application is supported by the affidavit of Danson Thuo sworn on 4/4/2023 which reiterates the grounds upon which the application is brought.

4. The respondents opposed the application and in their replying affidavit sworn on 26th April 2023 stated that the Applicant had not demonstrated why a Stay of execution pending appeal is merited or any substantial loss they will incur if not granted.

5. The judgement against the Appellants was delivered on 15th December 2022 and the current application was not made until proclamation was done, thus a delay tactic.

6. Further, that no security had been offered by the Applicant and that the deceased was the sole bread winner who left behind the applicant and four children.

7. They also stated that the Appellants delayed the matter at the trial court by filing their defense two years later after which they did not file any evidence or call any witnesses.

8. The Appellants only agreed to pay throw away costs after interlocutory judgement was entered. The applicant had not met the threshold for a grant of orders of Stay of Execution pending Appeal.

9. They said that the Court ought to dismiss the application or in the alternative, order the Appellants to pay half of the decretal sum and deposit the balance into a joint account.

10. The parties filed written submissions which I have duly considered.

11. The Applicant submitted that the Jurisdiction of this Court to grant Stay pending Appeal is invoked under Order 42 of the Civil Procedure Rules.

12. That the memorandum of appeal raises triable issues that merit the consideration of the High Court and has very high chance of success.

13. Further that unless stay is granted, the Appeal will be rendered nugatory and the Appellant’s will suffer irreparable damage.

14. The decretal amount is a substantial sum of Kshs. 4, 994, 042 and the Appellant is apprehensive that the Respondent is a man of straw, and if paid, will not be in a position to refund should the appeal succeed.

15. Further, that the award is above the Policy Limit of Kshs. 3,000,000. Should the application succeed, the Appellant will issue a Bank Guarantee from Equity Bank to the tune of Kshs. 3,000,000. In the alternative, the Appellant prays to deposit the decretal sum in a joint account in the names of the Advocates representing the parties within 90 days. If the orders are granted, the Respondent will not be prejudiced.

16. The Appellant relied on the decision in the matter of Kenya Hotel Properties Limited -v- Willesden Properties Limited Civil Application Number 322 of 2006 KLR where the Court reiterated the Court of Appeal decision in the matter of House Finance Company of Kenya -v- Sharok Ker Mohamed Ali Hirji & anor )2015) eKLR where the Court held that:“. . . to emphasize that even in an application involving a money decree, a stay of execution pending appeal may be granted so as to alleviate any undue hardship the applicant would suffer if stay is refused.

17. The respondent on her part submitted that the Applicant had not demonstrated that orders of stay of execution pending appeal is merited and that the application is merely a delay tactic. The applicant had failed to demonstrate substantial loss that they would suffer if stay is not granted.

18. The Respondent relied on the decision in the mater of Nicholas Stephen Okaka -v- Alfred Waga Wesonga (2022) eKLR where the Court held that:“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: namelya.that substantial loss may result to the applicant unless the order is made;b.the application has been made without unreasonable delay; andc.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.. . .The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal . . . Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.

19. On the question of unreasonable delay, the respondent submitted that the application had been made three months after the judgement was granted and that the matter in the lower court had been deliberately delayed by the Applicant for four years.

20. The respondent also submitted that the Applicant ought to provide sufficient security considering the appeal does not dispute the appellant’s liability in the accident but only challenges the degree of liability.

21. The respondent prayed that the application for stay be dismissed and the applicant be ordered to pay half of the decretal sum to the Respondent and the rest be deposited in a joint account pending the hearing of the appeal.

22. The Principles guiding the grant of stay of execution pending appeal are stipulated under Order 42 Rule 6(2) of the Civil Procedure Rules which provides as follows:“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

23. The issues for determination in the application dated 4/4/2023 are as follows;i.Whether stay of execution should be granted pending appeal.ii.Whether the appeal should be admitted for hearing.

24. On the issue as to whether the applicant should be granted stay of execution pending appeal, the governing provision is Order 42 Rule 6 which 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 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)Notwithstanding anything contained in subrule (2), the court shall have power, without formal application made, to order upon such terms as it may deem fit a stay of execution pending the hearing of a formal application.(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.(5)An application for stay of execution may be made informally immediately following the delivery of judgment or ruling.(6)Notwithstanding anything contained in subrule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with. The condition for grant of stay pending appeal are that the applicant should be ready to deposit security for costs for the performance of the decree.

25. I find that the applicant filed a memorandum of appeal on 28/12/2022 a few days after the judgment was delivered on 15/12/2022.

26. The duty of this court is to balance the interest of the parties. The appellant has a right to exercise his right of appeal while the respondent is entitled to enjoy the fruits of his judgment.

27. Warsame, J (as he then was) in Samvir Trustee Limited vs. Guardian Bank Limited Nairobi (Milimani) HCCC 795 of 1997 held that:“. ..the yardstick is for the court to balance or weigh the scales of justice by ensuring that an appeal is not rendered nugatory while at the same time ensuring that a successful party is not impeded from the enjoyment of the fruits of his judgement. It is a fundamental factor to bear in mind that, a successful party is prima facie entitled to the fruits of his judgement; hence the consequence of a judgement is that it has defined the rights of a party with definitive conclusion. . . At the stage of the application for stay of execution pending appeal the court must ensure that parties fight it out on a level playing ground and on equal footing in an attempt to safeguard the rights and interests of both sides. The overriding objective of the court is to ensure the execution of one party’s right should not defeat or derogate the right of the other. The Court is therefore empowered to carry out a balancing exercise to ensure justice and fairness thrive within the corridors of the court. Justice requires the court to give an order of stay with certain conditions.”

28. In the matter of In re Estate of Richard Churko Stephen ‘alias’ Richard Churko Guyo (Deceased) [2021] eKLR. The court outlines the Principles guiding a grant of stay of execution pending Appeal as follows:“The principles upon which the court may grant stay of execution pending appeal are well-settled. These are captured in Order 42 Rule 6 of the Civil Procedure Rules which requires an applicant seeking a stay of execution pending appeal to demonstrate that -(a)Substantial loss may result to the applicant unless the order was made;(b)The application was made without unreasonable delay; and(c)Such security as the court orders for the due performance of such decree or order as may ultimately be binding on him as been given by the applicant.”

29. I grant stay of execution pending appeal on the following grounds;i.That the applicant deposits half of the decretal sum in court within 45 days of this date.ii.That the appeal is fully prosecuted within 90 days of this date.iii.That the proclamation by Moonstar Enterprises Auctioneers be and is hereby lifted.iv.That the costs of this application to abide the appeal.v.That the record of appeal be filed within 30 days of this date.vi.Mention on 14/12/2023 for directions on the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 10TH DAY OF NOVEMBER, 2023. ..................A. N. ONGERIJUDGEIn the presence of:……………………………. for the Appellant……………………………. for the Respondent