Edward Kamau & James Karanja v Hannah Mukui Gichuki & Gestetner Limited (Miscellaneous Application 78 of 2015) [2015] KEHC 2563 (KLR) (Civ) (8 July 2015) (Ruling)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MISCELLANEOUS APPLICATION NO.  78 OF 2015

EDWARD KAMAU………………..…1^ST APPELLANT/ APPLICANT

JAMES KARANJA …………………2^ND APPELLANT/APPLICANT

VERSUS

HANNAH MUKUI GICHUKI  ……………..………1^ST RESPONDENT

GESTETNER  LIMITED………………………….2^ND RESPONDENT

 

RULING

Before this court for determination is the appellant/applicant’s application by way of Notice of Motion dated 12^th February 2015 brought under the provisions of Section 79G and 95 of the Civil Procedure Act and all other enabling provisions of the law.

The application seeks for two main prayers  namely: leave of court  to lodge an appeal from  judgment  and decree  in Milimani  CMCC 2724 of 2012 delivered on  20^th November 2014 out of time and secondly, stay of execution of  decree in Milimani CM CC 2724/2012  pending  hearing and determination  of the intended  appeal.

The prayer for stay pending  this  ruling was granted a exparte  in the  first instance  under certificate  of urgency on 13^th February 2015 conditional  upon the applicant  depositing  the entire  decretal  sum in court .

The grounds upon  which the application  is predicated  are, material to this ruling:  That the intended  appeal is arguable; that no notice was ever issued to the  applicants  herein as per the directions  of the lower court; that the applicant  only became  aware of the judgment vide  a letter dated 6^th February 2015 informing  them that judgment had been entered  on 20^th November 2014; That failure to file memorandum of  appeal in time was inadvertent: That the  orders sought  will not  prejudice  the respondent  in any  event; and that  it is in the interest  of justice.

The application is further supported by  the affidavit  sworn by Kinyanjui  Theuri advocate  on 12^th February 2015 who deposes  that his  firm represented  the applicants in Milimani CM CC  2724/2012  but that when the  suit came  up for  confirmation of  filing of submissions, the  respondents advocates  misdirected  the court that  the applicants  had filed submissions, which  submissions  were only filed  on 5^th November 2014.  Further, that  no judgment notice  was issued  for 20^th November 2014  yet on 4^th November 2014  when the  matter  came up  for mention, the  applicants  were absent  and  were only made aware of the  judgment when the respondents  counsel notified  them by letter dated 6^th February 2015 and that no notice of  entry of judgment  was ever given prior thereto.

The applicant’s counsel further deposes that the respondents proceeded to obtain decree without following the laid down process of a copy on the applicant/defendants counsel for approval and that the judgment was erroneous.  The applicant’s  counsel maintains that the applicants  have a good  appeal  on merit  and that the  respondent/decree holder  is a person of unknown means and the applicant is therefore  apprehensive  that if the decretal  sum is paid out  then the appeal would be  rendered  academic  in nature.  The applicants  are also  said to be ready and  willing to give security  for the due performance of a stay  order and  that no prejudice  will be suffered  by the respondent if the  orders  sought are granted.

The application by the applicants was opposed.  Mr Kaburu advocate for the respondent swore an affidavit in  reply on 25^th February 2015 contending  that the  court herein has no jurisdiction  to order for stay of  execution  pending  appeal when  there is no appeal  filed.

Mr Kaburu  contended that paragraph  3 of the supporting affidavit  by the applicant’s counsel  was misleading as  Mr Kinyanjui Njuguna  for the applicants  is the one who told the lower  court that both parties  had  filed submissions and asked  for a  judgment  date which  the court  set for  20^th November 2014 and that on 20^th November 2014 when the judgment   was read, none of the parties were present  in court and the trial  magistrate noted “ despite  notice  in court on 4^th November 2014” hence it   was a lie  for counsel for the applicant to allege  that the  court was misled  by the  plaintiff’s counsel, and  that it  is the applicants  who are misleading  this court to  get discretionary orders.

Mr Kaburu deposes that since the date for judgment was given in open court in the presence of both counsels for the parties, it was not necessary for anybody to issue notice of entry of judgment.  Further ,that when the applicants filed   their submissions in court on 5^th November 2014  they must  have been made aware  that judgment  was scheduled  for 20^th November 2014, which submissions  were  taken into account by the  trial magistrate in her judgment.

In his view, the applicants  were not  vigilant and  that the letter for  approval of decree vanished  from his office file and  from the court  file  leaving  only the one to court dated 19^th January 2015 and urged the court to  take judicial notice  that courts do not  issue decree without  evidence of service of the draft  upon the opposition.

In addition, that no error has been  pointed out concerning the awarded decretal sum and that  the appeal on liability can only be academic , the  defendant’s driver having been convicted  for reckless driving  and fined kshs  10,000 and that the  said driver  admitted at the hearing that he was overtaking  when  he caused the  accident, and that the respondent  herein  was only a passenger.

On the issue of  the plaintiff’s means, Mr Kaburu deposed that she had  pleaded  in her plaint  that she was  a business lady and that  the lower  court even  awarded  her loss of  earnings  and that  she offers to give  security  by way of a  bank guarantee for full restitution within 14 days.  Mr Kaburu concludes  that there is no jurisdiction  for granting  the reliefs  sought as the applicants  have not shown sufficient  cause for  grant of the orders sought  or what  form of substantial loss they will  suffer  if the orders sought are  not  granted.

The 2^nd applicant James Karanja filed  a supplementary affidavit on  16^th March  2015  in response to the respondent’s advocate’s affidavit  maintaining that  this court has the  jurisdiction  to grant orders  sought as  an appeal  would automatically  arise  once leave to file the  appeal is  allowed.

The respondent also maintains that  there  was appearance by their advocates  on 4^th November 2014  when judgment date  was given and that the records  only show  name of  law firm  not an  advocate.  Further  that on 4^th November 2014  the court  was not sitting and the  matter was  put for mention on the next day  that is why they filed  submissions  on 5^th November 2014  when the  court clerk  intimated to  the applicant’s advocate clerk that a notice of judgment  would issue but that  no such notice of judgment  date, or notice of  judgment  upon entry and copy of decree  for approval  were served  before filing  decree in court as per the law required.  He maintained that the appeal has good chances of success  in that the plaintiff was a motor rider  who substantially contributed to the accident, the court made an  award  of special damages  in  case where the medical costs  were  met by an insurer  not party to  these proceedings; the award on  general damages  for pain and  suffering is inordinately  high; and  there was no foundation for award  of loss of business, future  earnings  that the amount involved  is enormous  and the  respondent  has not shown  her individual capacity  to safeguard  the award  if executed, which  will render the appeal nugatory. 

The application was argued  orally after the applicant failed to meet  the timelines given for filing of written  submissions, and filing of submissions  that were illegible (faded) which  were expunged  from the court record  on 29^th April 2015.

Mr Bose advocate  for the applicants  submitted that this court has the discretion  to grant leave  for filing  of an appeal out of time  as the  applicant’s  failure  to file an  appeal  in time  was  due to  the facts  as deposed  in their  supporting and supplementary affidavit  that they never got  notice of date  of judgment  and of notice of  entry of judgment or even  copy of decree and only became  aware of  judgment on 6^th February 2015 when they  received  letter from the respondents.

On whether  sufficient  ground had been  made for ground, he submitted  that order  42 Rule 6(2) of the Civil Procedure Rule  had been  fulfilled in that on substantial loss  being shown, he amount exceeds  one million which is  colossal and  that the  respondent is a retired  civil  servant who has not filed any affidavit  of means  and that  there is a risk  that there may be no recompense  if  the appeal is successful.

On whether the application was filed without unreasonable delay, the applicants counsel submitted that the application for stay was filed within 7 days of notification of the judgment.

On security for due performance of decree, the applicants submitted that they had already deposited all the decretal sum in court.  They also submitted that the intended appeal raises triable issues on liability, quantum and special damages and that special damages especially, was never incurred by the respondent.  In his view, the applicant shall suffer substantial loss if stay is not granted.

In opposition, Mr Kaburu advocate for the respondent relied on his sworn replying affidavit on 25^th February 2015.  Responding  to the issue of leave, he relied  on Section 79G of the Civil Procedure Act  to the  effect  that the applicants  must  show good and sufficient  cause  for the delay .  Further, that the record in the lower court  shows that  their  advocate attended  court on 4^th November 2014  yet they allege that they  were  not aware of the judgment date until 6^th February 2015, yet the  court itself  noted on 20^th November 2014 that the parties  were absent  but had  notice on 4^th November 2014 hence the accusation  that the  respondent did not  give notice of  judgment cannot be true and  that the supplementary  affidavit  is misleading  to the court  as there is  no such record and that if they attended court on 5^th November 2014  then they must  have known the judgment date.  Further, that the applicant does not state when they received instructions to file the appeal.  That they are before this court with unclean hands.

In addition, Mr Kaburu  submitted  that is  surprising that the applicants  now allege  that the  respondent was   a motor cycle rider  when her status   was established to be a pillion passenger  and the 2^nd applicant  was convicted  and fined  for careless driving  hence the appeal has no merit.  On the prayer for stay of execution, it was contended that the applicant must satisfy the court that there is good and sufficient cause to warrant leave to file an appeal before stay can be considered.  He submitted that his client is   willing to deposit a bank guarantee and that she should not be denied the full amount of the judgment.  That  the court can  even pay  her half of the said  decretal  sum to enable  her attend  treatment  to remove  implants  from  her fractured  leg.  He urged the court to dismiss the application as several pages of the judgment in the lower court were omitted in the copies filed in this court.

In a brief rejoinder, Mr Bose advocate for the applicants submitted that there was no deposition on bank guarantee and that if there were any missing pages of the record of the judgment as filed then it must be a mistake.

I have carefully considered the application by the applicant and the submissions by their respective advocates.  None of the parties relied on any precedent to advance their respective positions.

The issue  that emerge from the  pleadings and submissions  are  whether  the applicant  has satisfied  the court  on the conditions for  granting leave to appeal out of  time and  secondly if so, whether  the applicant has satisfied the  conditions necessary for granting  of stay of execution of decree pending appeal.

The time within which an appeal from an order or decree from the lower court can be made to the High Court is found in the provisions of section 79G of the Civil Procedure Act.  The section provides:-

“ Every  appeal from a subordinate  court to the High Court  shall be filed  within a period of 30 days from the  date of the decree  or order appealed  against, excluding from such period  any time  which the lower court may  certify as having been requisite for the  preparation and delivery  to the appellant  of a copy of the decree of order.”

Under the proviso to the said Section 79G of the Civil Procedure Act, an appeal may be admitted out of time  if the appellant satisfies the court that  he had a good  and sufficient  cause  for not filing the  appeal in time.

The Supreme Court in the case of Nicholas Kiptoo arap Korir  Salat vs IEBC & 7 Others, SC Appl 16/2014 laid down  the following  as the underlying  principles  that a court  should consider  in the exercise of  discretion to extend  time:-

1) Time is not a right of a party.  It  is an equitable  remedy that is only available  to a deserving party at  the discretion of the court;

2) The party  who seeks  for extension  of time has the burden  of laying  a basis  to the satisfaction  of the court

3) As to whether the court should exercise the discretion to extend  time, is a consideration to be made  on a case bass;

4) Whether there is a reasonable reason for the delay.  The delay should be explained to the satisfaction of the court.

5) Whether there will be any prejudice to be suffered by the respondents if the extension is granted.

6) The application  should have been brought  without undue delay; and

7) In certain cases, like election petitions, public interest should be considerations for extending time.

Applying the above principles, the question is whether the applicant has shown good and sufficient cause for not filing the appeal in time.

According to the applicant’s they were not aware of the date for judgment  as they did not attend court  on 4^th November 2014  when the  matter came up  for mention to confirm whether  parties had complied  with the order for filing of  submissions  for the court  to give  a date for judgment.  They also allege  that they  were not  served  with a notice  of judgment  date  and  notice of  entry of judgment  as well  as a draft  decree for their approval  and that they  only learnt of the judgment  on 6^th February 2015  when the  respondents  counsel wrote to their advocates..  The respondent contests  those averments  and states that  both parties  were in court  on 4^th November 2014  when the court set judgment  date for 20^th November 2014  and that  therefore  there was no requirement of the notices to issue  to the applicants.  Further, that the applicant having filed their submissions on 5^th November 2014 ought to have known the judgment date from the file.

The above rival positions notwithstanding , neither  of the parties  representatives attended  court ton 20^th November 2014  when  judgment  was delivered and  the trial court noted  “despite notice  in court on 4^th November 2014”

None of the parties attached  copies of  proceedings  for 4^th November 2014  in the lower court  for this  court to appreciate  the record  as it is.  Nevertheless, the applicant having  filed their  submissions  on 5^th November 2014, they were under a duty  to inquire  the date for  judgment  and if  they  did not, only to be awakened  on  6^th February 2015  by a letter  from the respondent’s  counsel, then it  was their own fault.

In my view, the respondent or even  the court, in the circumstances of this case  which heard the suit  interpartes  with each party  ably  represented  by an advocate, there is  absolutely no justification for requiring  that  notice for judgment  date be  given, especially when the only  evidence annexed  to this application  is that which shows  that both  parties had notice of date of  judgment on 4^th November 2014, implying that the parties  were in court  when the date  for judgment  was given.  Secondly, the matter having   been fully  defended, the  issue of  notice of entry  of judgment is a farfetched  one since  such notice is only required  under the provisions  of Order 21  Rule 6 of  the Civil Procedure  Rules proviso  where there has been exparte judgment  against  a party who neither  entered appearance  nor filed defence, which notice  must be served before  execution of decree  in the suit.  The provision enacts:-

“ where  judgment  in default  of  appearance or defence  has been entered  against  a defendant, no execution by  payment, attachment or eviction shall issue  unless not less than 10 days notice of the  entry  of judgment  has been given to him either at  his address for service or served  on him personally and a copy of the notice shall be filed with the first  application for execution.”

In this case, the affidavit evidence shows  that the suit  was fully  defended  and submissions  filed by  the defendants  on 5^th November 2014 and that the lower court set a date  for judgment  on 4^th November 2014  for 20^th November 2014 in the presence  of both parties.

Out  of courtesy, I must emphasize, the  respondent’s  advocate  did write to the  applicants advocates  on 6^th February 2015 asking them to  advise their  clients  to pay or settle  the attached  decree within 14 days  in default, the respondent would sue  for an  enforcement  (declaratory suit). It is that notice and decree that awakened the applicants from their slumber, 2 months later after the judgment.  To that extend, this court  does not phantom how  the respondent’s counsel could have misled the lower court on filing of submissions  on 4^th November 2014  or be blamed  for failure  to issue notices of date of  judgment  or entry of judgment.

I have also examined the copy of decree attached to the letter dated                   6^th February 2015.  It was issued on 30^th January 2015 for kshs 1,668,386.37.  However, the certificate  of costs  cites date of decree  as being 30^th May 2013  which I find grossly erroneous  as judgment was  delivered on 20^th November 2014 and therefore  there is no way decree could be dated the previous year.  Further, there is no evidence that the party and party costs were agreed upon and or that they were taxed whether exparte or interpartes at kshs 154,252/-.  It is therefore not clear where the respondent’s counsel found the certificate of costs appended to the decree issued on 30^th January 2015.

Nonetheless, that is an irregularity which can be cured by an order for a fresh decree being issued and costs being reassessed and a fresh certificate thereof being issued.

I however must mention that there is also no evidence that the decree of the lower court was drafted and sent for approval by the opposite party to the suit before it could be issued and or executed.

Order 21 Rule 8 of the Civil Procedure Rules provides that

1. “8 (1) a decree shall bear the date of the day on which the judgment was delivered.

2. Any party in a suit in the High Court  may prepare  a draft  decree and submit  it or the approval of the other parties to the suit, who shall  approve it with or without  amendment, or reject it, without undue delay; and if the draft  is approved by  the parties, it shall be submitted  to the registrar who, if  satisfied  that it is drawn up in accordance  with the judgment, shall sign and seal the decree accordingly.

3. If no approval of or disagreement  with the  draft  decree is received within seven  days  after delivery thereof to the other  parties, the registrar  on receipt of notice  in writing  to that effect, if satisfied  that the draft decree is drawn up in accordance  with the judgment, shall sign and seal  the decree accordingly.

4. On nay disagreement  with the draft  decree any party may file the draft decree  marked as “ for settlement” and the  registrar shall there upon list the  same in chambers before the judge  who heard the case of  if  he is not  available, before  any other judge and shall give  notice thereof to the parries.

5. The provisions  of sub-rules 2,3 and 4 shall apply to a subordinate  court and reference to the registrar and judge  in the Sub Rules shall refer to Magistrate’s

6. Any order, whether  in the High Court  or in the subordinate  court, which is required  to be drawn up , shall be prepared  and signed in like manner  as a decree.

7. Nothing in this rule shall limit the power of the court to approve a draft decree at the time of pronouncing judgment in the suit, or the power of the court to approve a draft order at the time of making the order”.

In other words, even decrees and orders in the lower court must be prepared in accordance with Sub Rules 1, 2, 3 and 4 of Order 21 Rule 8 of the Civil Procedure Rules. This was not done in this case which was an irregularity as the applicants were not given an opportunity to approve the decree.  There  is also no evidence  from the annexed  handwritten  judgment  that the trial magistrate approved  a draft decree  at the time  of her decision in accordance  with Subrule 7  of Rule 8 of  Order 21 .

In my view, there is no room for circumvention of the Rules as reproduced herein as that can be interpreted to mean that the respondent was driven by bad faith or had the intention of stealing a march on the applicants.

The power to grant leave to file  an appeal out of time is a discretionary  one and  the party seeking such discretionary orders which  are only  given on a case to case basis, not  as a matter of right, must satisfy the court by placing  some material  before the court upon which such  discretion may be exercised.

In this case, as I have stated  in my analysis  above, there is absolutely  no reason why the appellants  were not aware  of the judgment until 6^th February 2015 and this court can only  infer that  the applicants advocates were not vigilant  in the manner  in which  they handled  this matter at the very end.  Such casual  handling of  a party’s matter by counsel, in my view can lead  to the party suffering prejudice  and in this case the prejudice likely to be suffered by the  applicants  is that  they are likely to be ousted from the judgment seat of exercising  their statutory  right  of appeal  against  the decision of the lower court.

Albeit  both parties have  attempted  to demonstrate from the opposing  sides, on the  one hand, the applicants  claiming that they have an arguable  appeal with chances of success and  the respondent on the other hand  arguing  that the appeal as intended  is not  arguable, it would be unfair at this  stage for this court to engage in a mini trial  of the intended  appeal  if  I was  to delve  into  its merits and or demerits  thereof.

Nonetheless the applicants intend to challenge judgment both in liability and quantum of damages awarded by the lower court.

The right of appeal, it has been held time and again, is a Constitutional right which is the cornerstone of the rule of law.  To deny a party  that right, would in essence be  denying  them access to justice which  is guaranteed  under Article 48 of the Constitution and also a denial of a right to a fair  hearing guaranteed  under Article 50 (1) of the Constitution  which latter  right  cannot be limited  under Article  25  of the said Constitution.

In my view, it has not been shown that the intended appeal is frivolous or a sham and therefore it is only fair and just that the applicants  be accorded  an opportunity  to ventilate  their grievances  where they  are aggrieved  by a  decision of the lower court, to challenge  it before a  superior court.

By so doing, in my view, this court  will be exercising its discretion judiciously to ensure that the applicants  are  not driven from the judgment  seat  even if  there was some indolence  leading to delay  of  two months.

In my view, that delay from 20^th November 2014 to the time this application was filed, just 7 days after discovery of the judgment, though not sufficiently explained, is not inordinate.  In addition, the delay can be compensated by an award of costs.

The Supreme Court  in the Nicholas  Kiptoo case (Supra)  did not command  that all the 7 principles laid down  for extension of time for filing  of an appeal must be satisfied  that being  the case, this court can  still exercise  it discretion in the interest  of justice, and  where it is clear like  in this case  that no prejudice that  cannot be compensated  by an award of costs by allowing the applicant to  file an appeal out of time.

This court has already found that the advocates  for the applicant have  not been candid upon discovery that it   was their fault that they  did not  attend court on 2oth November  2014 when  judgment  was delivered as that is  a fact they ought to have known at the time of filing of submissions on  5^th November 2014, assuming they did not attend  court on 4^th November 2014.  The applicant’s attack on the respondent’s counsel, in my view is unjustified.  There is no evidence that the  applicants  have even, upon discovery of that  judgment, applied   for certified copies  of proceedings and judgment  for appeal  purposes, which I consider  to be another  blunder  made by the applicant’s advocates  on record.

In Branco Arabe Epanol vs Bank of Uganda (1999) 2 EA 22 it was held:

“ The  administration of justice should  normally require that the substance  of all disputes  should be  investigated  and decided  on their merits and  that errors , lapses should not necessary debar a litigant from the  pursuit  of his rights and unless a  lack of adherence  to rules renders  the appeal process difficult  and  inoperative, it would seem that the  main purpose of litigation, namely  the hearing and determination  of disputes  should be fostered rather  than hindered.”

In Phillip Keipto Chemwolo & Another vs Augustine Kubonde (1986) KLR 495 the Court of Appeal held that

“ Blunders will continue to be made  from time to time and it  does not  follow that  because a mistake has  been made  a party should  suffer the penalty of having  his case determined  in its merits.”

It is for the above reasons that I shall exercise my discretion to allow the prayer for leave to be granted to the applicants to file their intended appeal out of time.

The said appeal shall be lodged within 14 days from the date hereof and in default, the leave hereby granted lapses automatically.

Having granted  leave to appeal out of time to the applicants  I now venture  into the territory  of the motion’s prayer for stay of execution pending the filing of  intended  appeal and upon such filing of the intended  appeal within  the stipulated period, until the  appeal is heard and determined .  That  determination  leads me to answer the second issue of  whether the  applicants  have  satisfied  the conditions for the granting  of stay of execution pending  appeal.

The circumstances under which the court will grant stay of execution pending appeal are clearly set out in Order 42 Rule 6 of the Civil Procedure Rules which enact:

1. No appeal or 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.

2. No order  of 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

b) The application has been made without unreasonable delay; and

c) 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.

On the first condition of substantial  loss likely to be suffered by the  applicant if stay is not granted, the  applicants  have submitted and  contended  that the decretal sum awarded amounting to over one  million  is colossal and that the  respondent  being a retired civil servant  who  has not sworn an affidavit  of means  has no means  of raising  the said  sums of money should it be paid to her and the appeal is successful, which would render the appeal nugatory.

On the other hand, the respondent contends  that she is a business lady  and she was even awarded  damages  for loss of earnings  and that she  would be willing to give  an undertaking  by way of a  bank guarantee to be fulfilled  within 14 days  should she  be paid  the money  and the appeal succeeds.  She also submitted that the court should consider even paying her half the money to enable her seek medical attention for the removal of metal implants in her fractured site.

I have examined the hand written judgment of the lower court and what I can only describe as a draft decree annexed to the affidavit by the applicants.  The award is monetary and the total sum deposited in court is kshs 1,822,639 inclusive of the estimated costs of kshs 154,252/- and kshs 1,668,386.37 as per the judgment and interest for 2 months.  Albeit  an affidavit  of means  was not sworn by the respondent, it is not denied  that she  was  a retired  civil servant who was also engaged  in business hence the  claim  and award for loss of earnings  in the sum of kshs 168,000/-.  There is no evidence that the respondent is so impecunious that if paid the money and the appeal succeeds, she will be unable to repay the money and or that the appeal shall be rendered nugatory.  I say so with conviction bearing  in mind that  this was a  road traffic accident as  was  correctly  pointed out by the  respondents  counsel, the record  is clear that she  was not  a motor cyclist  but  a pillion passenger  and unless  the applicants  enjoined the motor cyclist as a third  party or sought  indemnity  from him, there is no way the  respondent can be held to have  contributed to the occurrence of the  accident on the material available.

With regard  to whether  the application was made without unreasonable delay, the record  clearly shows that upon the  applicants  being made  aware  of the judgment  on 6^th February 2015, they  acted  speedily and even before  or without  applying  to the lower  court to be supplied  with certified  copies s of proceedings and judgment, filed this application on 13^th February 2015  under certificate  of urgency  wherein  this court granted them  an exparte  interim  stay of execution .  That was within 7 days from 6^th February 2015 to 13^th February 2015.  In my view, albeit  the decree as extracted  is problematic  there was  threat  of execution  within  14 days  hence the application herein was filed without   undue  delay.

On whether the applicants  are ready, able and  willing to deposit security  for the due performance  of such decree  as may ultimately be binding  on them, the applicants have  deposed  that they are willing to comply with that condition and have  deposited  in court  the said  whole  decretal sum.

It therefore  follows that whereas the applicants  have satisfied  the court  on the two conditions for granting  of stay pending appeal, they  have not satisfied the court that  if the decretal  sum if fully paid out to the respondent and   the appeal as intended succeeds, she will not be in a position  to refund  the money  and that therefore they will suffer substantial loss  and that  the appeal shall be rendered nugatory.

The respondent has even offered a bank guarantee redeemable within 14 days of call.

In Machira vs East African Standard   No. 2 (2002) KLR 63 it was held thus:-

“ To  be obsessed  with the protection  of an appellant  or intending  appellant  in total disregard  or mention  of the  so far successful party is to  flirt  with one  party as crocodile tears  are shed  for the other, contrary to said principle  for the exercise of  a juridical discretion .  The courts must have its  sight  firmly fixed  on upholding  the overriding  objective  of the rules of procedure for  handling civil cases in court, which is to do justice  in accordance  with the law and to prevent  abuse of the court process.”

The commanding preamble provisions of Order 42 Rule 2 is that.  “No order for stay of execution shall be made under Sub Rule (1) unless……………….. which Imply that the three conditions are inextricable.  They must all be met for an applicant to be granted the order of stay of execution pending appeal.

However, in making any orders under the aid provisions, this court if enjoined to consider the justice of the case for both parties, while applying the overriding objectives of the law as espoused in section 1A and 1B of the Civil Procedure Act.  Having  found that the right of  appeal  is intrinsically linked  to a right to  fair hearing  and a right  to access justice, while appreciating  that the  respondent should not be denied  the enjoyment  of the fruits  of her lawfully obtained judgment,  under Article 159  of the Constitution, justice  shall be  done to all irrespective  of status.  That right therefore has to be  balanced out against  the right of  the appellant not to  be ousted  from the seat  of justice by  denying  them a stay since justice is a two way traffic.

This court appreciates that the applicants being a party seeking favourable exercise of the court’s discretion is under a legal duty to place some material before the court upon which such discretion should be exercised.  In other words they should prove that the respondent is so impecunious that if the decretal sum is paid then they will not recoup should the appeal succeed, thereby rendering it nugatory.  They have also argued that although the respondent is offering a bank guarantee, that is not deposed on her affidavit of means.

I am in agreement  with the applicants  that in the absence of an affidavit  of means, it may be construed that the respondent is not  possessed of sufficient  means  and therefore not in a position  to  reimburse  decretal money should the  appeal succeed.  I am enjoined by the holding  of the Court of Appeal in the case of National Industrial Credit Bank Ltd vs Aquinans Francis Wasike Court of  Appeal  Civil Application No. 238/2005, the Court of Appeal held:-

“ This  court  has said before and  it would bear  repeating that  while the  legal duty is on an applicant to  prove the allegations that an appeal  would be rendered nugatory because the  respondent would be  unable to pay back the decretal sum, it is un reasonable  to expect  such an applicant  to know  in detail the resources  owned by a respondent  or the lack of them.  Once an applicant expresses a reasonable  fear that  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.”

Therefore, to ensure that the parties  to the suit  fight  it out on level  ground  on equal footing,  stay  can be granted  on terms, since there is no  absolute guarantee  that the appeal as  filed shall be successful on all fours, while appreciating  the respondent has a  lawful judgment  whose execution is being suspended.

In the end, I employ a balancing  act  between two rights- of that of  appeal by the applicants  and of enjoyment  of a lawful judgment  and not being  discriminated  for  being  of unknown financial means, for  the Constitution commands that justice shall be done  to all irrespective of status.

I grant  to the applicants stay of  execution of judgment  of the lower court  conditional  upon the  applicants  paying to the respondent as sum of kshs  900,000/- out of the monies deposited in court on  25^th March 2015 as security  for the due performance of decree. The rest of the decretal sum to be released to be deposited in a joint earning account to be opened and held by both advocates for the parties hereto.  The money shall be held in a reputable financial institution until the intended appeal if filed is heard and determined or until the court gives appropriate  green light as to its disposal on application by either party.

The said monies shall be disbursed as ordered   within 21 days from the date hereof.

In default, the orders of stay shall lapse unless otherwise enlarged by the court.

The respondent shall have costs of this application.

Dated, signed and delivered in open court at Nairobi this 8^th day of July 2015

 

R.E. ABURILI

JUDGE