Kango v Nthuli (Civil Appeal 219 of 2023) [2024] KEHC 117 (KLR) (17 January 2024) (Ruling)
Neutral citation:
[2024] KEHC 117 (KLR)
Republic of Kenya
Civil Appeal 219 of 2023
FROO Olel, J
January 17, 2024
Between
Elizabeth Kango
Appellant
and
Eunice Mukui Nthuli
Respondent
Ruling
A. Introduction
1.The application before this court is the Notice of Motion application dated 8th September 2023 brought pursuant to provisions of Article 159 (2), (a) & (d) of the constitution of Kenya 2010, Section 1A, 1B, 3A & 75 of the Civil Procedure Act, Order 42 rule 6 and Order 51 rule 1 of the Civil Procedure Rules, and all other enabling provision of law. The applicant seeks for orders;a)That the Honourable court be pleased to grant stay of execution of the judgment and/or decree issued by Honourable H.M Mbati Principal Magistrate on 10th August 2023, pending the full hearing and determination of this Appeal in Machakosb)That this Honourable court allow the applicant to furnish the court with security in the form of a bank guarantee from family Bank.c)That costs of this application be provided for.
2.The application is supported by the grounds on the face of the said application and the supporting affidavit of the appellant Elizabeth Kango, who depones that judgement was entered as against her on 10.08. 2023 in Machakos Civil Suit No 451 of 2019, where she was held 100% liable and General damages were assessed at Kshs 520,000/=, Special damages was also assessed at Kshs 11,070/= plus costs and interest. Being aggrieved by the said judgment she had promptly filed this appeal which in her opinion raised triable issues and had high changes of success.
3.That unless stay of execution was granted, she would suffer substantial and irreparable loss if the decision of the trial magistrate was left to stand. The applicant further averred that she was willing and ready to provide security as maybe directed by court and that the respondent would not suffer any prejudice should the application be allowed. The application had been brought foth without undue delay and it was in the wider interest of justice to grant the orders so sought.
4.The respondent counsel made oral submissions in court and urged the court to find that the appeal as filed did not raise any triable issue and the appeal was calculated to prevent her from enjoying the fruits of her judgment. The applicant had not demonstrated what substantial loss she would suffer if stay is not granted and thus his application ought to be dismissed with costs. In the alternative if the court was inclined to allow the said application, then the respondent did pray that the applicant be directed to pay half the decretal sum and deposit the other half in a joint interest earning account held jointly by both advocates.
Analysis & Determination
5.I have carefully considered the Application, Supporting Affidavit, the Respondent’s counsel oral submissions and discern that the only issue which arise for determination is whether this court should proceed to grant orders of stay of execution pending appeal
6.The prayer sought by the applicant for an order of Stay of execution pending appeal is governed by Order 42 Rule 6 of the Civil Procedure Rules. It is evident from the said provision that power to grant stay of execution pending appeal is an exercise of discretion of the court on sufficient cause being shown by the Applicant that substantial loss may result to the applicant if the orders are denied; the application should be made without undue delay and the court will impose such security as the court may impose for the due performance of any decree or order as may ultimately be binding on the Applicant.(see Butt Vs Rent Restriction Tribunal (1982) KLR 417 and James Wangalwa & Another Vs Agnes Nalika Chereto (2012) Eklr).
7.To the foregoing I would add that an order of stay may only be granted for sufficient cause and that the Court in deciding whether or not to grant the stay shall also consider the overriding objective stipulated in sections 1A and 1B of the Civil Procedure Act, to enable court give effect to the overriding objective, while in the exercise of its powers under the Civil Procedure Act or in the interpretation of any of its provisions. The Court, in exercising its discretion, should therefore always opt for the lower rather than the higher risk of injustice. See Suleiman vs. Amboseli Resort Limited [2004] 2 KLR 589.
i. Undue Delay
8.As to whether the Application has been filed without undue delay, judgment was entered on 10.08.2023. The notice of appeal and application for stay pending appeal was filed on the 11.09.2023, which was within one month (the judgment date excluded). This court thus finds that the appeal and this application for stay of execution has been filed without undue delay.
ii. Substantial Loss
9.On the issue of substantial loss, Ogolla, J in Tropical Commodities Suppliers Ltd & Others vs. International Credit Bank Ltd (in liquidation) [2004] 2 EA 331 stated that:
10.In the case of James Wangalwa & Another vs. Agnes Naliaka Cheseto [2012] eKLR the court expressed itself as hereunder:
11.The same position was adopted by Kimaru, J in Century Oil Trading Company Ltd vs. Kenya Shell Limited Nairobi (Milimani) HCMCA No. 1561 of 2007 where he stated that:
12.The respondent did not file a replying affidavit to rebut the averments made by the applicants in the supporting affidavit, nor did she submit that she was in a position to refund the decretal sum should the court hold this appeal.In the case of National Industrial Credit Bank Ltd Vs Aquinas Francis Wasike & Another (2006) eKLR the Court of Appeal held thus;
13.Guided by the above authorities and in the absence of the requisite proof from the Respondent that she is a person of means, I find that the Appellant has satisfied this court that she will suffer substantial loss if the entire decretal sum is paid to the Respondent before the appeal is heard and determined. The Appellant has therefore fulfilled this condition.
iii. Security
14.As regards deposit of security, the court observed in the case of Gianfranco Manenthi & Another vs Africa merchant Assurance Co. Ltd [2019] eKLR it was held that:-
15.The Court must similarly consider the overriding objective and balance the interest of the parties to the suit while considering the issue of security to be offered. The law is that where the applicant intends to exercise his undoubted right of appeal, and in the event, that he were eventually to succeed, he should not be faced with a situation in which he would find himself unable to get back its money. Likewise, the respondent who has a decree in his favour should not, if the applicant were eventually to be unsuccessful in its intended appeal, find it difficult or impossible to realize the decree. This is the cornerstone of the requirement for security.
16.The issue of adequacy of security was dealt with by the Court of Appeal in Nduhiu Gitahi vs. Warugongo [1988] KLR 621; 1 KAR 100; [1988-92] 2 KAR 100 where the Court of Appeal expressed itself as follows:
17.The applicants did state with regard to the issue of security that, they were ready to abide by any conditions that may be impose by court and were willing to deposit a bank guarantee for the decretal amount. The respondent on the other hand did request court to have the appellant pay half the decretal sum and deposit the other half in a joint interest earning account.
A. Disposition
18.Taking all relevant factors into account and in order not to render the intended appeal illusory while at the same time securing the interests of the successful party to the appeal, I do grant prayer (4) of the Notice of motion application dated 8th September 2023 pending hearing and determination of the appeal filed on condition that the appellants will pay the respondent half of the decretal sum awarded and deposit the other half in a joint interest earning account held in the join names of both counsels herein at a reputable commercial bank.
19.The appellant is granted 45 days within which to comply with the above order from the date of delivery of this Ruling and should they fail to do so, the application dated 8th September, 2023 will be deemed to have been dismissed and the respondent will be at liberty to execute.
20.Costs herein will abide the Appeal.
READ, SIGNED AND DELIVERED VIRTUALLY AT MACHAKOS ON THIS 17TH DAY OF JANUARY, 2024.FRANCIS RAYOLA OLEL...............................JUDGEI certify that this is a true copy of the originalSigned DEPUTY REGISTRARIn the presence of:-Ms. Waweru for AppellantMr Mutinda for RespondentSusan /Sam – Court Assistant