[2022] KEHC 11791 (KLR)

Watako v Yusuf (Civil Appeal E118 of 2021) [2022] KEHC 11791 (KLR) (19 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11791 (KLR)

Republic of Kenya

In the High Court at Eldoret

Civil Appeal E118 of 2021

RN Nyakundi, J

May 19, 2022

Between

Charles Watako

Appellant

and

Kathra Ahmed Yusuf

Respondent

((Being an appeal from CMCC No.E123 of 2021 by Hon. C. Menya -SRM))

Ruling

1. The applicant matter dated 27/9/2021 is expressed to be brought pursuant to Order 42 rule 6, Order 51 rule 1 of theCivil Procedure Rules and section 1A, 1B and 3A of the Civil Procedure Act seeking the following order. That were asking execution of the decree in CMCC No.E123 of 2021 pending the hearing and determination of the appeal. The application is supported by an affidavit sworn on 27/9/2021 by Mathew as the claims officer with Occidental Company Ltd. In that affidavit, it was deponed that the applicant was sued in CMCC 123 of 2021 for a claim in court seeking special and general damages involving motor vehicle reg. No.KAM 395C apparently issued with a policy of insurance referenced as TP/07/33004/04/TPO.

2. It was the basis of the claim that an accident occurred on 24/11/2020 along Eldoret – Kipkaren road involving the insured motor vehicle whereupon the respondent suffered personal injuries. Thereafter, a trial held before the lower court awarded the respondent a sum of kshs.1,118,000/- as damages for pain and suffering plus costs and interest.

3. The applicant and interested applicant being aggrieved with the said decision has preferred an appeal. This application is therefore meant to preserve the status quo by way of the order of stay of execution of the decree of the lower court. The respondent on his part filed grounds of opposition. On consideration of the application and corresponding affidavit and grounds of opposition, it is now my duty to now determine the merits of the issues raised herein.

Determination: 4. It is instrumental that the legal foundation for grant of orders of stay of execution pending an appeal is provided for in order 42 rule 6 (1) (2) of the Civil Procedure Rules. The said principles from the statutory provisions on stay of execution are also guided by the principles in the various case law. In Butt v Rent Restriction Tribunal [1982] KLR 417, the court held as follows:1. The power of the court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.2. The general principle in granting or refusing a stay is; if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should that appeal court reverse the Judge’s distraction.3. A judge should not refuse a stay if there are good grounds for granting it merely because in his opinion, a better remedy may become available to the applicant at the end of the proceedings.4. The court in exercising its discretion whether to grant (or) refuse an application for stay will consider the special circumstances in the case were that there was a large amount of rent in dispute and the appellant had an undoubted right of appeal.5. The court in exercising its powers under Order XLI Rule 4 (2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security for costs as ordered will cause the order for stay of execution to lapse. See also National Industrial Credit Bank Ltd v Aquinas Francis Wasike CA No.238 of 2005 Machira t/a Machira & Co. Advocates v East African Standard [2002] KLR 63 Kenya Shell Ltd v Kibiru [1980] KLR 410 (Giving effect to the principles illuminated in the cited cases, the applicant has demonstrated existence of a valid judgment delivered by the court below it is a money decree arising from the claim filed by the respondent. There is therefore the reality of imminent execution to enforce the judgment and consequential orders. I find no evidence on the part of the respondent that he will be able to refund the decretal sum should the intended appeal be found to be successful. I am therefore convinced that in the circumstances, prima facie evidence exist of rendering the appeal nugatory. The reasonable fear conceived by the applicant that he is likely to suffer substantial loss of stay of execution is denied has not been controverted by the response.

5. Furthermore, a successful party can be deprived of the fruits of his judgment once an applicant or intended appellant brings himself or herself within the conditions in Order 42 Rule 6 (1) and (2) of the Civil Procedures and the settled principles in case law.

6. This is to say, that the fact of a successful party before the court below is not in itself a ground for refusal of stay of execution, but is a factor that ought to be taken into account in the balancing act of discretion.

7. In the premises the applicant discloses sufficient cause for grant of stay of execution pending an appeal against the decree in CMCC No.E123 of 2021, and I do therefore grant the notice of motion dated 27/9/2021 is merited.

8. As a conseguence to that exercise of discretion, the applicant be and is hereby directed to deposit the decretal sum in the joint earning interest of both counsels within 45 days from today’s date. The application/Intended appellant be at liberty to file and serve the record of appeal upon the respondent within the afore-stated period. Further, the incidental costs arising out of this motion abide the outcome of the appeal.

DATED, SIGNED AND DELIVERED VIA EMAIL AT ELDORET THIS 19TH DAY OF MAY, 2022. .....................R. NYAKUNDIJUDGE