Nyatera v Nyakundi (Civil Appeal E033 of 2022) [2023] KEHC 3086 (KLR) (16 March 2023) (Ruling)
Neutral citation:
[2023] KEHC 3086 (KLR)
Republic of Kenya
Civil Appeal E033 of 2022
WA Okwany, J
March 16, 2023
Between
Purity Nyatera
Appellant
and
David Angwenyi Nyakundi
Respondent
(Being an Appeal against the Judgment/Decree of Hon. W. K. Chepseba (Mr.) – CM Nyamira dated and delivered at Nyamira on the 5th day of July 2022 in the original Nyamira Chief Magistrate’s Court Civil Case No. 197 of 2017)
Ruling
1.The Appellant/Applicant herein, Purity Nyatera, filed the application dated July 21, 2022 seeking the following orders: -(i)Spent(ii)Spent(iii)That his Honourable Court be pleased to stay execution of the decree in Nyamira MCCC No 197 of 2017 in respect of the judgment delivered on July 5, 2022 pending hearing and determination of the appeal herein;(iv)That upon grant of prayer ‘iii’ above, the Court be pleased to order that the Applicant do provide sufficient security in the form of a suitable Bank Guarantee from a reputable financial institution;(v)That costs of this Application be in the cause;
2.The application is supported by the Applicant’s affidavit and is premised on the grounds that: -(a)That Judgment herein was delivered on July 5, 2022 in the following terms;Liability at 100% against the defendant.General damages – Kshs 1,400,000/=Future Medical expenses – Kshs 200,000/=Special damages – Kshs 39,710/=Total amount – Kshs 1,639,710/=Costs and interest of the suit.(b)That the Applicant is aggrieved by the said judgment on the issue of quantum.(c)That the Applicant have lodged an appeal against the judgment in Nyamira CMCC No 197 of 2017 to wit, Nyamira High Court Civil Appeal No E033 of 2022, which appeal has high chances of success.(d)That there is an impending threat of execution by the Respondent against the Applicants since the stay of execution granted on July 5, 2022 is almost lapsing.(e)That the Decree is for a substantial sum of Kshs 1,639,710/= which if paid to the Respondent and the Appeal is successful, the Applicant will not be able to recover the same from the Respondent and the appeal will therefore be rendered nugatory.(f)That the Applicant will suffer substantial loss and damage if orders sought herein are not granted and further that the appeal will be rendered nugatory.(g)That this application has been filed timeously.(h)That the Respondent will not be prejudiced in any way if the orders sought herein are granted.(i)That it is in the interest of justice that the execution of judgment and/or decree herein be stayed pending the hearing and determination of the appeal.(j)That the Respondent is a person of straw and will not be able to refund the decretal sum if they are allowed to execute and the appeal thereafter succeeds.(k)That the Applicant is ready, willing and able to furnish such reasonable security as this Honourable Court may deem fit and in particular, the Applicant is willing and able to furnish security by providing a bank guarantee as security for the whole decretal sum.
3.The Respondent opposed the application through the replying affidavit sworn on August 19, 2022 wherein he states that the application lacks merit, is misconceived and does not meet the threshold set for the granting of orders for stay of execution pending appeal.
4.It is the Respondent’s case that the Applicant’s appeal is an afterthought and is manifestly devoid of any real triable issues. The Respondent maintains that the Bank Guarantee facility offered by the Appellant, as security, is not a safe kind of security owing to the fact that most public service vehicles underwriters, including M/s Directline Assurance Company Limited have collapsed and/or are on the verge of collapsing and that it would thus be fair for the Applicant to be directed to pay half of the decretal sum and deposit the remaining half in an interest earning account in the parties’ Advocates’ joint names.
5.The application was canvassed by way of written submissions which I have considered.
6.The main issue for determination is whether the instant application is merited.
7.The law governing the granting of orders for stay of execution pending appeal is codified under Order 42 Rule 6 (1) and 2 of the Civil Procedure Rules which stipulates as follows: -
8.The above provision requires an Applicant seeking orders for stay of execution to establish that he/she has a sufficient cause for seeking the orders, that he stands to suffer substantial loss if the orders are not granted and lastly, that he is willing to furnish security for the due performance of the decree. In addition to the above conditions, an application for stay of execution pending appeal must be made without unreasonable delay.
9.In the instant case, the impugned Lower Court judgment was delivered on July 5, 2022 and the present application filed on July 21, 2022. I therefore find that the application was filed without unreasonable delay.
10.The Applicant has also filed an appeal which, in his view, raises triable issues. I find that the Applicant has demonstrated that he has sufficient cause for seeking orders of stay of execution pending the appeal.
11.Regarding substantial loss, the Applicant stated that the Respondent will not be able to refund the decretal sum is for the sum of Kshs 1,639,710 should the appeal be successful owing to his financial unknown and/or shaky financial standing.
12.The Respondent, on the other hand, argued that he will be able to refund the decretal sum in the event that the appeal succeeds. I however note that the Respondent did not tender proof of his financial standing before this court as a confirmation of his averments. In Kenya Shell Limited v Kibiru [1986] KLR 410, it was held that: -
13.In the above cited case, the court further observed that: -
14.It is trite that the mere fact that the decree holder is not a man of means does not necessarily justify stopping him from benefiting from the fruits of his judgement. The general rule is that the Court ought not to deny a successful litigant of the fruits of his judgement save in exceptional circumstances where to decline to do so may well amount to stifling the right of the unsuccessful party to challenge the decision in the higher Court. Where the allegation is that the respondent will not be able to refund the decretal sum the burden is upon the Applicants to prove that the Respondent will not be able to refund to the Applicants any sums paid in satisfaction of the decree. In Machira T/A Machira & Co. Advocates v East African Standard (No 2) [2002] KLR 63 it was held that:
15.In the present case, the Applicant has simply stated that the Respondent will not be in a position to refund the decretal sum if paid over to him. It is however not enough for the Applicant to speculate that the Respondent, a successful litigant would not be able to refund the decretal sum. As far as the Court is concerned, he is a successful litigant who is entitled to the sum decreed in his favour. I note that there was no allegation that the payment of the said sum would ruin the applicant’s business. I am guided by the decision in HCCA No 161 of 2019; Awale Transporters Ltd v Kelvin Perminus Kimanzi where the court observed that:
16.In the instant case, I note that the Respondent did not demonstrate that he will be in a position to refund decretal sum if the same is paid over to him apart from bare averment that he is a man of means.
17.Turning to the aspect of security for the due performance of the decree, I note that the Appellant offered to provide Bank Guarantee as security while the Respondent insisted on the payment of half of the decretal sum and the deposit of the remaining half in a joint interest earning account. The position taken by courts, when faced with similar applications, is that they ought to weigh the likely consequences of granting or not granting the stay and lean towards a determination which is unlikely to lead to an undesirable or absurd outcome. This is to say that the Court should place the parties before it on equal footing so as to ensure that any transitional motions before the Court do not render nugatory the ultimate end of justice. In this regard, the Court is required to exercise its discretion in a manner that opts for the lower rather than the higher risk of injustice. This is the position that was adopted in Jason Ngumba Kagu & 2 Others v Intra Africa Assurance Co. Limited [2014] eKLR where it was held that:
18.In Samvir Trustee Limited v Guardian Bank Limited Nairobi (Milimani) HCCC 795 of 1997 the court observed that:
19.Similarly, Warsame, J (as he then was) held as follows in Samvir Trustee Limited v Guardian Bank Limited Nairobi (Milimani) HCCC 795 of 1997 that:
20.Having regard to the findings that I have made in this ruling and in balancing the interests of both parties, I will allow the instant application in the following terms: -a.There shall be stay of execution of the decree/judgment in Nyamira CMCC No 197 of 2017 delivered on July 5, 2022 but on condition that: -i.The Appellant shall, within forty-five (45) days from the date of this ruling, pay to the respondent the sum of Kshs 600,000/= being part of the decretal sum.ii.The Appellant shall, within forty-five (45) days from the date of this ruling, provide security in the form of a Bank Guarantee from a reputable financial institution in respect to the remaining balance of the decretal sum.iii.In the event of failure to comply with the conditions in (a) (i) & (ii) herein above, the stay orders issued herein shall automatically lapse and the Respondent shall be at liberty to proceed with the execution process.b.The costs of the application shall abide the outcome of the appeal.
21It is so ordered.
RULING DATED, SIGNED AND DELIVERED AT NYAMIRA VIA MICROSOFT TEAMS THIS 16TH DAY OF MARCH 2023.W. A. OKWANYJUDGE