Ngaruiya & another v Wanyonyi (Civil Appeal E146 of 2021) [2022] KEHC 211 (KLR) (15 March 2022) (Ruling)
Neutral citation:
[2022] KEHC 211 (KLR)
Republic of Kenya
Civil Appeal E146 of 2021
MW Muigai, J
March 15, 2022
Between
Samuel Ngaruiya
1st Appellant
Japheth Gitonga Guantai
2nd Appellant
and
Samuel Wekesa Wanyonyi
Respondent
(Being an Appeal from the judgment on quantum of the Hon. B. Kasavuli (Mr.) Principal magistrate in Mavoko CMCC No. 844 of 2019 dated and delivered on 5th August, 2021)
Ruling
1.Vide Application dated the 3rd of September 2021 under Section 1A,1B and 3A of the Civil Procedure Act, Article 159 (2) (a) of the Constitution of Kenya, 2010, Order 21 Rule 1B, Order 22 Rule 22, Order 40 Rule 6, Order 51 of the Civil Procedure Rules seeking the following orders, THAT;
2.The Application is supported by the affidavit of Japheth Gitonga Guantai sworn in 13th of September 2021 in which he contended that avers that he is the insured of Motor vehicle registration KBJ 318W and being aggrieved by the judgement that was entered against him on 5th August 2021, he filed an appeal that he believes has high chances of success and that the Respondent may levy distress against them rendering the appeal nugatory. He further averred that the Respondent would not be able to settle the decretal sum if the Appeal was successful and further that he had not shown any evidence of his financial standing. He contended that he was willing to furnish the court with a Bank Guarantee form DTB Bank.RESPONDENT’S REPLYING AFFIDAVIT
3.The Respondent filed a replying Affidavit dated 28th September 2021 in which he deposed that Applicant should deposit half the amount being Kshs 126,775/- plus costs and interest in a joint interest earning account and the other half be released to him. He opposed the bank guarantee as she contended that it is only valid for 12 months from 6th November 2020 by which time the Appeal will not have been concluded. He deposed that the limb of furnishing security was not fulfilled. He deposed that the appeal did not raise any grounds and was fled to frustrate his efforts of reaping the fruits of the judgement.
4.Directions were taken in 21st of September 2021 that the application be canvassed by way of written submissions. The Appellants filed submissions on 6th December 2021 while the Respondent indicated that he would rely on his Replying Affidavit.APPELLANTS’ SUBMISSIONS
5.The Appellants’ submitted on three grounds, counsel submitted that the Application had been filed without unreasonable delay as judgement was delivered on 5th of August 2021 and the Application filed on 13th September 2021.
6.Secondly, the Appellants submitted while relying on the case of Edward Kamau & Another vs Hannah Mukui Gichuki & Another [2015] eKLR that the Respondent’s reply does not inform the court of his financial standing meaning that his financial status remains unknown and therefore he will not suffer substantial loss if the decretal sum is not paid.
7.While relying on the case of Recoda Freight & Logistic Limited vs Elishana Angote Okeyo [2015] eKLR where the issue of an arguable appeal was discussed, he submitted that the Memorandum of Appeal dated 16th August 2021 raises triable issues.
8.Lastly, they reiterated their willingness to provide a bank guarantee that is open.
9.The Applicants submitted that they had satisfied the conditions set out in Order 42 Rule 6 in asking the court to grant them the orders sought.ANALYSIS & DETERMINATION
10.I have considered the application, affidavits in support and in opposition to and the written submissions and I find that the issue for determination is whether the Applicant is entitled to the orders sought.
11.The application is premised on Order 42 Rules 6 of the Civil Procedure Rules, 2010 wherein it is stipulated as follows:
12.The Applicant avers that the Respondent may levy execution against them rendering the Appeal nugatory and the same will cause irreparable loss and damage and that the respondent would be in no position to refund them in the event the Appeal succeeds. In addition, the Appellants insurer has not demonstrated the substantial loss that it would suffer if the decretal mount is paid to the Respondent. On the other hand, the Respondent has not in her reply given any indication of being able to pay back the decretal sum in the event the Appeal will succeed.
13.This court in Michael Kamau Kurumah and 2others vs Agness Mwikali Malonza HCCA 181 0F 2021 observed that;
14.Gichuhi, Ag.JA (as he then was) in Kenya Shell Limited vs. Kibiru [1986] KLR 410, at 417 held:
15.As regards the first ground, none of the parties have shown what substantial loss they will suffer.
16.On the second ground of time, Judgement in Mavoko CMCC 844 of 2019 was delivered on 5th of August 2021 and the current application was filed on 14th of September 2021. I find that this was done within reasonable time.
17.As to what constitutes an arguable appeal, the Court of Appeal in Nairobi Women’s Hospital vs. Purity Kemunto [2018] eKLR:-
18.Having perused the Memorandum of Appeal and without going into the merits, I find that the Appeal raises arguable issues that will be determined by the Appellate court.
19.As regards the issue of deposit of security, the Applicant has offered to give a bank guarantee of Kshs. 30,000,000 from DTB that the Respondent contends that it is only for 12 months.
20.From the record, the DTB Bank Guarantee at Clause 3, “its validity shall not exceed one (1) year from the date of issuance or until such time that the said guarantee is cancelled or becomes void whichever comes first and shall be renewed thereafter at our discretion”
21.The court, in RWW vs. EKW [2019] eKLR, addressed its mind to the purpose of a stay of execution order pending appeal, in the following words:DISPOSITION
22.In the end, I issue the following orders;
It so ordered.RULING DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 15TH DAY OF MARCH, 2022.M.W MUIGAIJUDGE