[2022] KEHC 10420 (KLR)

Tsiambaba v Abila (Suing as a Personal Representative and Administrator of the Estate of Benard Odhiambo Maua (Deceased)) (Civil Appeal E011 of 2022) [2022] KEHC 10420 (KLR) (17 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10420 (KLR)

Republic of Kenya

In the High Court at Kericho

Civil Appeal E011 of 2022

AN Ongeri, J

June 17, 2022

Between

Edward Andoli Tsiambaba

Appellant

and

Queensiy Akinyi Abila (Suing as a Personal Representative and Administrator of the Estate of Benard Odhiambo Maua (Deceased))

Respondent

Ruling

1. The Application dated 7/3/2022 is seeking the following orders:-i.That this matter be certified urgent and heard ex parte in the first instance and service thereof be dispensed with.ii.That this Honourable Court be pleased to order a stay of execution of the Judgment/Decree dated 2/2/2022 vide Kericho CMCC Number 87 of 2018, Queensiy Akinyi Abila(Suing as a Personal Representative and Administrator of the Estate of Benard Odhiambo Maua (Deceased) VS. Edward Andoli Tsiambabapending the hearing and determination this application inter partes.iii.That this Honourable Court be pleased to order a stay of Execution of the Judgment/Decree dated 2/2/2022 vide Kericho CMCC Number 87 of 2018, Queensiy Akinyi Abila(Suing as a Personal Representative and Administrator of the Estate of Benard Odhiambo Maua (Deceased -vs- Edward Andoli Tsiambabapending the hearing and determination Kericho HCCA No.11 Of 2022. iv.That the Honourable Court be pleased to order that the applicant furnishes security in form of a Bank Guarantee for the sum of Kshs. 2,638,000/= pending hearing and outcome of the Appeal herein.v.That the costs of this Application abide the outcome of the Appeal.

2. The Application is supported by the Affidavit of Edward Andoli Tsiambaba dated 7/3/2022 in which he stated that he was the insured/beneficial owner of motor vehicle registration number KBJ 533C subject matter of the suit.

3. He further deposed that judgment was delivered on 2/2/2022 in Kericho CMCC No. 87 of 2018 for a sum of Kshs. 2,638,000/= plus costs and interests at court rates and a period of 30 days stay which had since lapsed thus exposing him to execution proceedings.

4. He deposed that he lodged an appeal against the judgment herein and was cognizant that an appeal did not operate as stay and his movable properties were exposed to execution and sale.

5. He further deposed that the appeal had high chances of success, that should the decretal sum be paid out to the Respondent, the Respondent would be in no position to refund the same if the appeal were to succeed and further to this the Respondent had not furnished the court with any documentary evidence to prove financial standing.

6. He further stated that unless stay of execution is granted the intended appeal would be rendered nugatory, he would suffer irreparable loss and damage, that the application was made in good faith and would not occasion any prejudice to the Respondent and that he was willing to furnish reasonable security in the form of a bank guarantee of Kshs. 2,638,000/=

7. The Respondent filed a Replying Affidavit dated 15/3/2022 sworn by Queensiy Akinyi Abila in which she deposed that the court cannot give any stay without proper security as required under order 42 rule 6 (2) of the Civil Procedure Rules and given that the appeal was on liability and quantum she proposed that half the decretal sum be paid to her and the remaining half of the decretal amount be deposited in a joint interest earning account in the name of both advocates.

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

9. The Appellant submitted that he had an arguable appeal. He was appealing on liability and quantum as the Appellant was of the view that the Respondent failed to prove her case on a balance of probability and an excessive award not proportionate to the loss suffered by the estate of the deceased was made by the lower court. The trial court erred and adopted a multiplicand of Kshs. 11,000/= without evidence on proof of earnings.

10. The Appellant submitted that the Respondent was incapable of refunding the decretal amount should the appeal succeed, in addition to this, the Respondent had not furnished the court with any documentary evidence as proof of financial standing and cited the cases of National Industrial Credit Bank Ltd vs. Aquinas Francis Wasike, Court of Appeal Civil Application No. 238/2005, Tabro Transporters Ltd. vs Absalom Dova Lumbasi(2012) eKLR.

11. The Appellant submitted that judgment was delivered on 2/2/2022, they filed their memorandum of appeal on 21/2/2022, well within the initial 30 day stay of execution and the instant application on 7/3/2022, they had approached the court within reasonable time.

12. The Appellant submitted that they were willing to furnish security by providing a bank guarantee for the decretal sum of Kshs. 2,638,000/=.

13. The Appellant submitted that they had satisfied all the conditions set out in order 42 rule 6 (2) of the Civil Procedure Rules for the court to grant an order of stay of execution pending hearing and determination of the appeal.

14. Respondent submitted that the court should dismiss the bank guarantee of Kshs. 2,638,000/= offered as security by the Appellant. The court should entertain the application for stay pending appeal on the condition that half the decretal sum be paid out to her and the other half is deposited in an interest earning account in the name of both counsels. She relied on several High Court cases with similar holdings.

15. The Respondent submitted that she needs the fruits of the judgment to educate the children left by the deceased. Further to this, the Appellant had not demonstrated evidence of substantial loss he would suffer if the decretal sum were to be paid out to her.

16. The legal provision governing conditions for stay pending appeal is Order 42 Rule 6(2) of the Civil Procedure Rules which states 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.”

17. In the case of Focin Motorcycle Co. Limited vs. Ann Wambui Wangui & Another [2018] eKLR, it was stated that; “Where the applicant proposes to provide security as the Applicant has done, it is a mark of good faith that the application for stay is not just meant to deny the respondent the fruits of judgment. My view is that it is sufficient for the applicant to state that he is ready to provide security or to propose the kind of security but it is the discretion of the Court to determine the security. The Applicant has offered to provide security and has therefore satisfied this ground for stay.”

18. I hereby grant the application for stay pending appeal on the following conditions;i.That half the decretal sum is deposited in an interest earning account held jointly by Counsels by both parties with 60 days of this date.ii.That the Applicant pays costs of this Application.iii.That the appeal be filed within 30 days of this date.

DELIVERED, SIGNED AND DATED AT KERICHO THIS 17TH DAY OF JUNE 2022. A. N. ONGERIJUDGE