[2021] KEHC 6272 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CIVIL CASE NO.57 OF 2008.

WILSON OLILO AMBOYE & 6 OTHERS...............................PLAINTIFFS/RESPONDENTS

VERSUS

THE HON ATTORNEY GENERAL.....................................1ST DEFENDANT/RESPONDENT

RIGHT REV.DR BYRUM MAKOKHA & 3 OTHERS.....2ND DEFENDANTS/APPLICANTS

RULING

1. The Notice of Motion by the 2nd applicants/ defendants dated 18th January 2021 prays for orders that there be stay of execution of the decree dated 12th October 2017 which is in favour of the plaintiffs pending the hearing and determination of an appeal pending at the Court of Appeal.

2. The application is supported by the affidavits of GEORGE KIRUMBA MBIYU advocate for the applicant and that of REV. JAMES OBUNDE the deputy bishop of the applicant church. The gist of the application is that the applicants are dissatisfied with the judgement and the decree passed by this court dated 12th October 2017 and they have since preferred an appeal. That the said appeal has a good chances of success and therefore pending its determination the respondents should be stopped from enjoying the fruits of the said judgement.

3. They have also stated that they have made this application expeditiously and without any undue delay and therefore they should be granted their prayers. They have also deponed that they are willing and ready to deposit half the decretal sum in court as a security pending the determination of the appeal.

4. The 2nd respondents opposed the application through the replying affidavit of the 1st respondent dated 18th February 2021 in which he swore on his own behalf and that of his co-respondents. He attacked the supporting affidavit of advocate Mbiyu on the grounds that he deponed on matters and facts which were not within his knowledge.

5. He went on to state that the said advocate would not know whether the applicants would stand to suffer any irreparable harm and loss should the respondents execute against them. He further stated that the application has been made belatedly and way after the decree had been passed and it was purely a waste of judicial time.

6. The court ordered the parties to file their written submissions which I have gladly perused. The applicant in essence submits that they have met all the ingredients for such an application as provided under Order 42 of the Civil Procedure Rules namely that the same is made without unreasonable delay, that they have an arguable appeal and that they are ready to offer half of the decretal amount to be deposited in court as a security pending appeal.

7. The respondents on the contrary have poked holes into the application stating that the same has been brought about 4 years after the judgement of the court which was an inordinate delay and ran contrary to the provisions of the above Order 42 of the Civil Procedure Rules.

8. That they have not demonstrated that they shall be unable to pay the decretal sum in the event that the appeal succeeds which to them was not feasible. They further submitted that the applicants have not demonstrated any loss they stood to suffer if they honour the decree in full and that they have not demonstrated as well that the respondents shall be unable to compensate them should the appeal is successful.

9. Both parties have relied on various authorities to support their positions which the court has perused and does not see the need to reproduce them here.

10. The provisions of Order 42 Rule 6are clear on when to allow such an application. The same provides that;

“No appeal or a second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the Court appealed from may order, but the Court appealed from may for sufficient cause order stay of execution of such decree or order and whether the application for such stay shall have been granted or refused by the Court appealed from, the Court to which such appeal is preferred, shall be at liberty, on an application being made, to consider such application and to make such orders thereon as may to it seem just, any person aggrieved by an order of stay made by the Court from whose decision the appeal is preferred may apply to the appellate Court to have the orders set aside.”

Order 42, rule 6 states:

“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; 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.”

11. The key issue here is whether to allow the application as the applicant seeks a 2nd bite at the cherry at the appellate court. This however ought to be balanced with the interest of the defendants who have been waiting to enjoy the fruits of the judgement since 2017.

12. Clearly the application as submitted by the respondents has been made after an expiry of about 4 years from the date of the judgement. The reasons for this are not clear. Neither did the respondents explained why they have not executed for all these years as well.

13. Secondly there is no evidence that the respondents may not be able to pay back the decretal sum if the appeal is successful. It is not enough for the applicant to simply state that the respondents are no longer members of its church and they have no place of abode. These are mere generalities to say the least.

14. The respondents on their part in my view did not demonstrate that they may have the ability to pay back the amount if transmitted to them. They did not rebut that assumption by the applicants.

15. The conditions whether to grant stay pending appeal as provided under Order 42 above are really discretional and ought to be applied on a case to case basis. Is it possible that if not allowed the applicants shall suffer irreparable loss.? From the depositions at hand there is no such evidence. The applicant has not demonstrated what loss it stands to lose as envisaged by the above rules.

16. Taking the totality of the facts herein and balancing the interests of both parties this court finds it necessary to strike a middle ground. The respondents in my view may be in a positon to pay back half the decretal amount if it is paid to them should the Court of Appeal find merit in the appeal.

17. In the premises, the application is allowed as hereunder;

a) The applicants shall pay to the respondents’ half of the decretal sum herein as well as taxed costs within 30 days from the date herein.

b) The other half of the decretal amount shall be deposited in a joint interest earning account in the names of both counsels for the applicant and the respondents within 30 days from the date herein.

c) In default of (a) and or (b) above the respondents shall have the liberty to execute for the whole amount.

d) The respondents shall have the costs of this application.

Dated signed and delivered via video link at Nakuru this 10th day of June 2021.

H. K. CHEMITEI.

JUDGE