[2023] KEHC 26113 (KLR)

Wanyonyi v Awinoa (Civil Appeal E118 of 2023) [2023] KEHC 26113 (KLR) (29 November 2023) (Ruling)

Neutral citation: [2023] KEHC 26113 (KLR)

Republic of Kenya

In the High Court at Kisumu

Civil Appeal E118 of 2023

RE Aburili, J

November 29, 2023

Between

Jesca Taaka Wanyonyi

Appellant

and

Elizabeth Awinoa

Respondent

(Arising from the Judgment and decree of the Adjudicator Kisumu Small Claims Court in Kisumu, SCCC No. E0154 of 2023 delivered on the 8th February 2023)

Ruling

1. This matter is part of series appealS filed by the Appellant herein, Jesca Taaka Wanyonyi arising from Judgments and decrees of the Small Claims Court Adjudicator.

2. In the series appeals, the common denominator is the appellant/applicant herein Jesca Taaka Wanyonyi. The Appellant was the Defendant before the Small Claims Court while the various Respondents in the respective appeals herein were claimants who sought for judgment against the appellant herein in damages arising from injuries that they sustained in the road traffic accident involving the appellant’s motor vehicle.

3. The various judgments giving rise to the series appeals were rendered on various dates ranging from 8th February 2023 and 19th July 2023, according to the memoranda of appeal in each of the files herein, which give those two dates.

4. From the annextures to the affidavits in support of the application for stay of execution of decree pending appeal herein, it is clear that similar applications for stay pending appeal were lodged before the trial Small Claims Court and the same were dismissed.

5. In this instant case, which is similar in all material particulars to all the series files, the Adjudicator heard and dismissed the application for stay pending appeal on 20th September 2023 and in the presence of both the claimant and the defendant now Appellant’s counsel.

6. The Adjudicator found that the Appellant had not met the conditions for stay as stipulated in order 42 rule 6 of the Civil Procedure Rules.

7. An appellant is at liberty and the present appellant has exercised that liberty to press on to this court for grant her the orders of stay pending appeal and order 42 of the Civil Procedure Rules permits her to do so.

8. In the Small Claims Court, she sought for an unconditional leave to appeal which the Adjudicator declined. The Appellant claimed that she could not raise security for due performance of decrees which sums of money cumulatively amount to Kshs.1,730,000 in all the collective claims filed against her and judgment entered thereon.

9. She now seeks for other modes of security, not being monetary, to be considered including depositing of title deed and log books. She claims that she is a retiree who has no stable means to settle the decrees.

10. From 20th September 2023, it was until 26th October 2023 one (1) month later is when the Appellant filed these applications in this court seeking stay of pending appeal.

11. In my humble view, the order sought being discretionary, it was upon the Applicant to act with alacrity and approach this court with expedition seeking for stay. It is for that reason that I declined to certify the applications as urgent since I did not find any urgency involved in view of the lapse of time since the Adjudicator declined to grant the stay orders sought.

12. On whether substantial loss will be suffered if the orders sought are not granted, the Applicant never mentioned what loss she will suffer. She focused on the arguability of her appeal which is not one of the conditions or factors that the court is called upon to consider under order 42 rule 6 of the Civil Procedure Rules. This is not to say that the court can allow an appeal for example, which is file out of time to stand, as it would be incompetent hence not arguable. That is not the case here at the moment.

13. The applicant did not demonstrate that the Respondents were persons of straw and that should they be paid the decretal sums, they are so impecunious that they shall not be in a position to reimburse the monies.

14. Again, the Appellant instead submitted through her counsel that the Respondents shall not suffer any prejudice if the orders sought are granted. Truthfully speaking, a person holding a barren decree is the one who would be prejudiced if that decree is just a paper document. execution or settlement of that decree of the court is the ultimate goal and hope of every successful litigant.

15. The court too has no business issuing decrees which will remain unsettled simply because the decree- holder will not be prejudiced if decree is not settled.

16. No decree holder should be allowed to be a pious explorer in the judicial process or in their quest for justice. I find that the applicant has not demonstrated what substantial loss she will suffer if the stay sought is declined.

17. The appellant beseeches this court to allow security for due performance of decree to be in the form other than the monetary security to be depositing of title deeds or log books.

18. The Appellant did not, however, file into this court any copy of title deed or log book to demonstrate that she holds clean titles to such properties or assets for which this court can be assured that should the appeal not be successful, the decree holders can realise the securities to settle the decrees in question.

19. Accordingly, the Appellant has failed the test as she has not disclosed to this court material that can be of aid to the court to dispense justice to her and to the decree holders as well.

20. To this court’s consternation, it was disclosed by the Respondent’s counsel that it is the same appellant herein who had lodged an Insolvency Cause No. E007 of 2023 which came up before this court on 27th November 2023 wherein the Applicant herein is seeking to be declared insolvent because she does not own anything capable of settling any debt.

21. In the said cause, she filed a statement of accounts claiming that she had no immovable assets and the movables were just mere household items. Her counsel on record, Mr. Ondego submitted that he was not aware of the Appellant’s move towards being declared insolvent.

22. The Appellant claims to be a retiree. Can a retiree, however low pension that they receive purport to be insolvent? Can a pensioner claiming to be insolvent have log books and title deeds capable of being deposited in this court as security for due performance of decree for about Kshs.2 million?

23. I find that the Appellant has only come to this court to demonstrate that she is a very dishonest person who does not deserve the discretion of this court. She has not come to court with clean hands. She has no good faith and is not interested in settling decrees of the court. She wants to evade justice and make it elusive for the Respondent decree holders.

24. The court will not be there to aid such persons who speak from two sides of their mouth. He who goes to equity must go with clean hands. He must be free from nay taint of fraud with respect to the claim before the court.

25. The Appellant wants to abuse the court process. She is not entitled to the equitable reliefs sought.

26. In the end, I find this application and all the applications in the series appeal files devoid of any merit. I dismiss the applications with costs to the Respondents.

27. This Ruling and order shall apply with necessary modifications to HCCA Nos. E119, E120, E121, E122, E123, E124 and E125 of 2023.

28. Mention on January 25, 2024 to confirm availability of the lower court files for admission of the appeals to hearing.

29. The Appellant should endeavour to file records of appeal so that this court fast tracks hearing of the appeals but this does not stop the ongoing execution process which should continue through skeleton/duplicate files before the Small Claims Court. I so order.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 29THDAY OF NOVEMBER, 2023. R. E. ABURILIJUDGE