[2022] KEHC 12374 (KLR)

Total Security Surveilance Limited & another v Oluoch (Civil Appeal E647 of 2021) [2022] KEHC 12374 (KLR) (Civ) (21 July 2022) (Ruling)

Neutral citation: [2022] KEHC 12374 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E647 of 2021

JK Sergon, J

July 21, 2022

Between

Total Security Surveilance Limited & another

Appellant

and

Vitalis Odhiambo Oluoch

Respondent

Ruling

1. The application dated January 18, 2022 seeks the following prayers;i.Spentii.Spentiii.That there be a stay of execution of the judgement and decree issued in the lower court pending the hearing and determination of the appeal.iv.That the costs of the application abide by the outcome of the appeal.

2. The respondent opposed the application via a replying affidavit dated February 16, 2022. Parties highlighted their submissions orally on March 28, 2022.

3. Ms Kamau, counsel for the applicant submitted that they are appealing against the entire judgement on grounds that the respondent’s suit was filed out of time and failed to satisfy the requirements of section 27 of the Limitation of Actions Act. She submitted further that they are also contesting the awarded decretal sum of kshs 2. 5 million which is in their view, excessive. The applicant is willing to deposit the entire decretal sum in a joint interest earning account or provide a bank guarantee. The appellant is apprehensive that the respondent may not refund the decretal sum should it be paid before the appeal is heard as he was the appellant’s employee.

4. Mr Okao, appearing for the respondent opposed the application and contended that the issue of limitation of action was dealt with by the trial court and a ruling delivered to that effect. He stated that the issue of capacity to repay was also addressed by the court and it should not be used to discriminate against poor litigants. Counsel further submitted that the respondent suffered a 40% permanent incapacity and a sum of kshs 250,000 is needed to remove the implants. He proposed that the decretal sum of kshs 2,750,000 be deposited in court or in a joint account and half of it redeemed to enable the respondent get medication.

5. Mr Okao referred to Miscellaneous Application no 78 OF 2015 between Edward Kamau &Another; V Hannah Mukui Gichuki & Another[2015] eKLR where the court stated that;“…therefore, to ensure that the parties to the suit fight it out on a level ground on equal footing, stay can be granted on terms, since there is no absolute guarantee that the appeal as filed shall be successful on all fours, while appreciating the respondent has a lawful judgment whose execution is being suspended.In the end, I employ a balancing act between two rights- that of appeal by the applicants and of enjoyment of a lawful judgment and not being discriminated for being of unknown financial means, for the Constitution commands that justice shall be done to all irrespective of status.Accordingly, I grant to the applicants stay of execution of judgment of the lower court conditional upon the applicants paying to the respondent a sum of kshs 900,000/- out of the monies deposited in court on March 25, 2015 as security for the due performance of decree. The rest of the decretal sum to be deposited in a joint interest earning account to be opened and held by both advocates for the parties hereto. The money shall be held in a reputable financial institution until the intended appeal if filed is heard and determined or until the court gives appropriate green light as to its disposal on application by either party.”

6. The applicant called on the court’s discretion for an order of stay of execution pending the hearing and determination of the appeal. The principles guiding the grant of a stay of execution pending appeal are provided under Order 42 rule 6(2) of the Civil Procedure Ruleswhich provides as follows: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. The Court of Appeal in Halai & Another v Thornton & Turpin (1963) ltd, [1990] KLR 365 held inter alia that;“The High Court’s discretion to order a stay of execution of its order or decree is fettered by three conditions. Firstly, the applicant must establish a sufficient cause, secondly, the court must be satisfied that substantial loss would ensue from a refusal to grant a stay and thirdly the applicant must furnish security. The application must of course be made without unreasonable delay.”

8. The appellants have a right to appeal guaranteed under the Constitution of Kenya, 2010. The appeal is in my view not frivolous and will be rendered nugatory if the decretal sum is paid to the respondent and the appeal succeeds.

9. The application was filed on January 18, 2022 while the judgement was delivered on September 8, 2021. The thirty days stay of execution had lapsed long before the application was filed. However, interim orders were granted on January 24, 2022 to last until the hearing of the application. Given that the timeline for the filing of the application is not in dispute, I do find that there has not been an unreasonable delay in filing of the application.

10. The appellants are willing to deposit the decretal sum in a joint account or provide a bank guarantee but are afraid of the respondent’s capacity to repay the money should the appeal be successful. In Machira t/a Machira & Co Advocates vs East African Standard(No 2) [2002] KLR 63 it was held that:“to be obsessed with the protection of an appellant or intending appellant in total disregard or flitting mention of the so far successful opposite party is to flirt with one party as crocodile tears are shed for the other, contrary to sound principle for the exercise of a judicial discretion. The ordinary principle is that a successful party is entitled to the fruits of his judgement or of any decision of the court giving him success at any stage. That is trite knowledge and is one of the fundamental procedural values which is acknowledged and normally must be put into effect by the way applications for stay of further proceedings or execution, pending appeal are handled. In the application of that ordinary principle, the court must have its sight firmly fixed on upholding the overriding objective of the rules of procedure for handling civil cases in courts, which is to do justice in accordance with the law and to prevent abuse of the process of the court”.

11. In New Wide Garments Epz (K) ltd v Ruth Kanini Kioko [2019] eKLR, the court stated inter alia that:“The law, however appreciates that it may not be possible for the applicant to know the respondent’s financial means. The law is therefore that all an applicant can reasonably be expected to do, is to swear, upon reasonable grounds, that the respondent will not be in a position to refund the decretal sum if it is paid over to him and the pending appeal was to succeed but is not expected to go into the bank accounts, if any, operated by the respondent to see if there is any money there. The property a man has is a matter so peculiarly within his knowledge that an applicant may not reasonably be expected to know them. In those circumstances, the legal burden still remains on the applicant, but the evidential burden would then, in those circumstances, where the applicant has reasonable grounds which grounds must be disclosed in the application that the respondent will not be in a position to refund the decretal sum if the appeal succeeds, have shifted to the respondent to show that he would be in a position to refund the decretal sum.”

12. The respondent is not opposed to the appellant pursuing its appeal. It is the respondent’s prayer that part of the decretal sum be released to him so as to cater for his medical needs pending the determination of the appeal. The appeal is on both liability and quantum. The appellant is of the view that the respondent’s case was filed out of time and the trial court erroneously extended the time. The case was filed seven (7) years after the occurrence of the accident.a.The court has to balance between the appellant’s right to pursue its appeal and the respondent’s right to enjoy the fruits of his judgment. The appellant is willing to deposit the decretal sum or provide a bank guarantee. That action has the effect of securing the respondent’s interest as the decretal sum can be realized quickly in the event that the appeal does not succeed. The respondent will only suffer the suspension of enjoyment of his judgment. That loss can be fairly compensated by the assurance that the decretal sum is readily available soon after the determination of the appeal. The appellant will equally suffer the loss of use of the decretal sum during the pendency of the appeal.

13. In the end, the motion dated January 18, 2022 is allowed. Consequently, an order for stay of execution of the decree of the trial court is granted pending appeal on condition that the appellant deposits the decretal sum of kshs 2,752,000/= in an interest earning account in the joint names of the advocates and or firms of advocates within 45 days from the date of this ruling. In default, execution to issue. Costs of the application to abide the outcome of the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 21ST DAY OF JULY,2022……………………J K SERGONJUDGEIn the presence of:……………………………. for the appellant……………………………. for the respondent