[2022] KEHC 3053 (KLR)

Wanjohi & another v Njeri & another (Civil Appeal E349 of 2021) [2022] KEHC 3053 (KLR) (Civ) (17 June 2022) (Ruling)

Neutral citation: [2022] KEHC 3053 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E349 of 2021

JK Sergon, J

June 17, 2022

SUING AS THE ADMINISTRATOR OF THE ESTATE OF THE LATE WILLIAM NDUNGU MWANGI

Between

Joseph Wanjohi

1st Applicant

Frank Joseph Wamaitha

2nd Applicant

and

Mary Njeri

1st Respondent

Francis Mwangi Mugo

2nd Respondent

Ruling

1. The appellants/applicants in this instance have brought the Notice of Motion dated 14th February 2021 supported by the grounds set out in its body and the facts deponed in the supporting affidavit. The applicant sought for the substantive order for stay of execution of the judgment delivered on 11th June, 2021 pending the hearing and determination of the appellants’ Appeal.

2. The respondent opposed the Motion by filing the Grounds of Opposition dated 22nd February, 2022 and put forward the following grounds:a.That the present application is an abuse of the court processb.That the application is an afterthought and is lacking in substance, unnecessary, vexatious and frivolous.c.That the application as drawn is totally defective and unattainable.d.That the application is only meant to deny the respondents the fruits of his judgment.

3. The Motion was canvassed by way of written submissions.

4. I have considered the grounds set out on the face of the motion and the facts deponed in the affidavit supporting it, the Grounds of Opposition and the contending written submissions and authorities cited.

5. A brief background of the matter as seen in the record is that the respondent instituted a suit before the Chief Magistrate’s Court against the applicant and sought for general damages and special damages of Kshs.7,740/= together with costs arising from fatal road accident.

6. Upon hearing the parties, the court vide the judgment delivered on 11th June 2021 awarded the respondents an aggregate sum of Kshs.5,257,740/= as damages plus costs of the suit and interest at court rates and holding the applicants 100% liable. Being aggrieved by the aforementioned decision, the applicants appealed to this court against the lower court’s judgment.

7. In her affidavit filed in support of the motion dated 14/02/2022, Ms. Harriet A Sang, the advocate of the appellants/applicants stated that the applicants are reasonably apprehensive that the respondents may levy execution against the applicants and the same will render the applicants’ appeal nugatory thus causing the applicants to suffer irreparable loss and damage.

8. She contends that the respondents have not disclosed nor furnished the court with documentary evidence to prove their financial standing and that the applicants do not know if they are in a position to refund the same in the event that the appeal is successful.

9. The applicant in their submissions relied on a Court of Appeal case in National Industrial Credit Bank Ltd v Aquinas Francis Wasike &another(2006) eKLR where the court stated that:“This court has said before and it would bear repeating that while the legal duty is on an applicant to prove the allegation that an appeal would be rendered nugatory because a respondent would be unable to pay back the decretal sum, it is unreasonable to expect such an applicant to know in detail the resources owned by a respondent or lack of them. Once an applicant expresses a respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the respondent to show what resources he has since that is a matter which is peculiarly, within his knowledge.”

10. The applicants submitted that respondents will not suffer any prejudice or any damage that cannot be compensated by way of costs of this application and that the applicants have also expressed a willingness to avail security of the amount of Kshs.3,000,000/= which is the statutory limit to be paid by the applicant’s insurance company by way of a bank guarantee. On this the appellant cited the Blacks Law Dictionary,10th Edition defines a bank guarantee as hereunder,“A letter of credit used to guarantee either a monetary or a nonmonetary obligation (such as the performance of construction work), whereby the issuing Bank agrees to pay if the beneficiary of the Bank customer defaults on its obligation”

11. In response, the respondents in their submissions noted that the judgment herein was delivered on 11th June 2021 and that the present application was filed on 14th February 2022 which is around nine months after judgment and that the applicant has not given the reason for the delay.

12. On the issue of substantial loss,the respondent submitted that the applicant has not even stated that it will suffer any substantial loss which is corner stone of granting stay and without evidence the respondents should not be kept out of his money. The respondents relied on the case of Equity Bank Ltd v Taiga Adams Co.Ltd [2006] eKLR where the court held that;“In the application before me, the applicant has not shown or established the substantial loss that would ensue if this stay is not granted. The only way of showing or establishing substantial loss is by showing that if the decretal sum is paid to the Respondent – that is execution is carried out – in the event the appeal succeeds, the Respondent would not be in a position to pay- reimburse – as he/it is a person of no means. Here, no such allegation is made, much less established, by the appellant/applicant.”

13. The principles guiding the grant of an application for stay of execution pending appeal are well settled. These principles 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 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; 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.

14. In the Court of Appeal decision in the case of Nairobi CivilApplication No. 238 of 2005 National Industrial Credit Bank Limited v Aquinas Francis Wasike & another(UR (supra) as followed by the High Court in Stanley Karanja Wainaina & another v Ridon Anyangu Mutubwa[2016] eKLR (supra) it was held that:“This court has said before and it would bear repeating that while the legal duty is on an applicant to prove the allegation that an appeal would be rendered nugatory because a respondent would be unable to pay back the decretal sum, it is unreasonable to expect such an applicant to know in detail the resources owned by a respondent or lack of them. Once an applicant expresses a respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the respondent to show what resources he has since that is a matter which is peculiarly, within his knowledge.”

15. In the case at hand, the Respondent has not disclosed any source of income that he would use to refund the applicants the decretal amount should the appeal succeed. Indeed the respondents’ averment that the process of execution has been put in motion, can only confirm that he will not be able to refund the decretal sum were the applicants’ appeal to succeed.

16. The applicants has thus established that it will suffer substantial loss if the intended execution is not stayed. It also follows that if the respondents execute the judgement and the applicants’ appeal succeeds, then not only will the applicants suffer substantial loss but the appeal will also be rendered nugatory.

17. Was the application filed without unreasonable delay? The application has been filed nine months after the delivery of the judgment. It is noted that the appeal was filed on 11th June, 2021 while the present application was filed on 14th February 2022. Concerning the delay the applicants stated the advocate who was in conduct of their matter was forced to go on mandatory bed rest and left without doing a proper hand over of her files.

18. From the above explanation, I am satisfied with reasons for the delay.

19. The applicants have indicated their readiness to furnish security for the due performance of the decree. The respondents assert that they are entitled to equal treatment before the law. The answer to the respondents’ concern is that his interests will be taken care of by the applicants depositing the decretal amount. Once the appeal is determined, the winner will have ready access to the money.

20. In the end the motion dated 14th February 2022 is found to be meritorious and is allowed. Consequently, an order for stay of execution of the decree of the trial court pending appeal is granted on condition that the appellant deposits the entire decretal sum in an interest earning account in the joint names of the advocates or firms of advocates appearing in this appeal within 45 days. In default the order for stay of execution shall automatically lapse. Costs of the motion to abide the outcome of the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 17TH DAY OF JUNE, 2022. ……………………….J. K. SERGONJUDGEIn the presence of:...................for the 1st Appellant/Applicant...................for the 2nd Appellant/Applicant.........................................for the Respondent