Kiwa v Mwakulomba (Civil Appeal E112 of 2024) [2024] KEHC 16775 (KLR) (12 November 2024) (Ruling)
Neutral citation:
[2024] KEHC 16775 (KLR)
Republic of Kenya
Civil Appeal E112 of 2024
NIO Adagi, J
November 12, 2024
Between
David Mbai Kiwa
Appellant
and
Mohamed Mwamboa Mwakulomba
Respondent
Ruling
1.The Appellant/Applicant’s application dated 16th April 2024 and filed on 17th April 2024 under Certificate of Urgency. It is premised on Sections 1A & 3A of the Civil Procedure Act Order 42 Rule 6 (2), Order 51 Rule 1 of the Civil Procedure Rules 2010, Article 50 of the Constitution and all other enabling provisions of the law. The application is supported by the affidavit of Timbwa Grace sworn on the even date
2.The Applicant herein prays to Court as follows:a)Spent.b)Spentc)That there be a stay of execution of the Judgement delivered by Honourable B.A Luova delivered on the 4th April 2024 in Machakos SCC E017 of 2024 and any consequent decree therein pending the hearing and determination of the appeal.d.The costs of this application be provided for.
3.The application is opposed by the Respondent vide the Replying Affidavit sworn by Mohamed Mwamboa Mwakulomba on 22nd April 2024 and prays that the application be dismissed with costs to the Respondent.
Factual Background
4.The Respondent instituted the Claim herein against the Appellant at the Machakos Small Claims Court. The Claim was prosecuted to finality and Judgment was entered in his favour and against the Appellant in the sum of Kshs.465,550.00 together with interest and costs of the Claim. The Applicant herein being dissatisfied with the said Judgement, filed a Memorandum of Appeal herein on 16th April 2024 alongside the instant application for stay of execution pending hearing and determination the Appeal.
Analysis and Determination
5.I have considered the application, the supporting affidavit, the Replying Affidavit, supplementary affidavit and the submissions filed by the Appellant’s counsel as well as the judicial decisions relied upon. In my view, the issues for determination are as follows:a.Whether the Applicant/Appellant has met the criteria for grant of orders of stay pending Appeal.b.Who shall bear costs of the application?
Whether the Applicant/Appellant has met the criteria for grant of orders of stay pending Appeal.
6.The law relating to stay pending Appeal is Order 42 Rule 6 (2). It is also important to state that the power to grant an order of stay is discretionary and is dependent on certain conditions being met.
7.Order 42 rule 6(1) and (2) of the Civil Procedure Rules,2010 provides as follows:
8.In Vishram Ravji Halai vs. Thornton & Turpin Civil Application No. Nai. 15 of 1990 [1990] KLR 365, the Court of Appeal held that whereas the Court of Appeal’s power to grant a stay pending appeal is unfettered, the High Court’s jurisdiction to do so under Order 41 rule 6 of the Civil Procedure Rules is fettered by three conditions namely:i.establishment of a sufficient cause,ii.satisfaction of substantial loss andiii.the furnishing of security.
9.Further the application must be made without unreasonable delay.To the foregoing, Justice Odunga in Michael Ntouthi Mitheu v Abraham Kivondo Musau [2021] eKLR held that:
10.Under Section 1B some of the aims of the said objective are; the just determination of the proceedings; the efficient disposal of the business of the Court; the efficient use of the available judicial and administrative resources; and the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties.
11.In Stephen Boro Gitiha vs. Family Finance Building Society & 3 Others Civil Application No. Nai. 263 of 2009, Nyamu, JA on 20/11/09 held inter alia that the overriding objective overshadows all technicalities, precedents, rules and actions which are in conflict with it and whatever is in conflict with it must give way.The same Judge in Kenya Commercial Bank Limited vs. Kenya Planters Co-Operative Union Civil Application No. Nai. 85 of 2010 held that:
12.It therefore follows that all the pre-Overriding Objective decisions must now be looked at in the light of the said provisions. This does not necessarily imply that all precedents are ignored but that the same must be interpreted in a manner that gives effect to the said objective. What is expected of the Court is to ensure that the aims and intendment of the overriding objective as stipulated in section 1A as read with section 1B of the Civil Procedure Act are attained. It is therefore important that the Court takes into consideration the likely effect of granting the stay on the proceedings in question. In other words, the Court ought to weigh the likely consequences of granting the stay or not doing so and lean towards a determination which is unlikely to lead to an undesirable or absurd outcome. What the Court ought to do when confronted with such circumstances is to consider the twin overriding principles of proportionality and equality of arms which are aimed at placing the parties before the Court on equal footing and see where the scales of justice lie considering the fact that it is the business of the court, so far as possible, to secure that any transitional motions before the Court do not render nugatory the ultimate end of justice.
13.The Court, in exercising its discretion, should therefore always opt for the lower rather than the higher risk of injustice.
14.In Butt Vs. Rent Restriction Tribunal [1979], the Court of Appeal gave pointers on what ought to be considered in determining whether to grant or refuse stay of execution pending appeal. The court stated thus:i.The power of the court to grant or refuse an application for a stay of execution is a discretionary, and the discretion should be exercised in such a way as not to prevent an Appeal.ii.The general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an Appeal may not be rendered nugatory should the Appeal court reverse the judge’s discretion.iii.Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the Applicant at the end of the proceedings.iv.Finally, the court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances of the case and its unique requirements.
15.On the first criterion as set out in Order 42 Rule 6 (2) i.e. Whether the Applicant has brought this application without unreasonable delay. The Judgement was delivered on 14th April 2024. The Memorandum of Appeal was filed on 17th April 2024. The trial court had granted the Applicant 30days stay of execution which lapsed resulting to filing of the instant application date 16th April 2024 and filed in court on 17th April 2024. In the circumstances, I find that application has been brought without unreasonable delay.
16.The second criterion is whether the Applicant has demonstrated that he is bound to suffer substantial loss if orders of stay of execution are not granted. The question that follows is what comprises substantial loss. In Silverstein Vs Chesoni (2002)1 KLR 867 it was held that
17.The Appellant has deposed that he stands to suffer loss if orders sought are not granted as the Respondent is a person of unknown means and that the Applicant is apprehensive that if the decretal sum is paid out, then the appeal if successful would be rendered an academic exercise and the Applicant will be exposed to irreparable loss.
18.That the order for stay is desirable so that the Appellant/Applicant may have their appeal heard in Court. If the decretal sum is released to the Respondent and the subsequent appeal allowed, where the financial capability of the Respondent is unknown then the applicant stands to suffer loss.
19.The court is under a duty to hold the rings of justice even handed; it should not offer any illegitimate advantage to either party. The Applicant appeals to this Honourable Court to maintain the status quo as has been to enable the Applicant an opportunity to be heard on his Appeal.
20.In the Replying Affidavit to the application, the Respondent deponed that the application lacks merit and is otherwise an abuse of the court process. The Respondent further depones that the averments made by the deponing Advocate with regards to substantial loss amounts to hearsay and thus the Applicant has failed to prove and or establish loss he is likely to suffer if the orders sought are disallowed. That no security for due performance of the decree has been provided and a mere inference of will to provide security does not amount to security. That in view of the foregoing, the Applicant has substantially failed to adhere to provisions of Order 42, Rule 6 (2) of the Civil Procedure Rules.
21.The Respondent deponed that, the applicant assertions that the Respondent is person of unknown means and if paid will not be able to refund the money if the appeal succeeds, should not solely be the reason for granting stay. The Respondent avers that he is equally ready to provide a bank guarantee for the decretal sum to confirm that he is a person of means to refund the decretal sum in the likely event the appeal is successful.
22.In granting an order of stay of execution, the court should not be seen to interfere with a party's enjoyment of the fruit of the judgment. In the case of Stephen Wanjohi vs. Central Glass Industries Ltd. Nairobi HCCC No.6726of 1991 where the court stated as follows: -
22.The loss the Appellant has alluded to is that the appeal herein will be rendered nugatory should the stay order be declined. It is my considered view that this being a monetary claim, any loss to be suffered by either party can adequately be compensated by an award in damages. The Appellant has not shown by evidence through an affidavit that the Respondent is incapable of refunding the decretal sums should the appeal succeed.
23.The third criterion is that the Applicant must furnish security for the due performance of the decree. I am fully aware that the court has a delicate task of balancing the interests of both the Appellant and the Respondent. The Appellant who seeks to preserve the status quo pending the hearing of the Appeal so that his Appeal is not rendered nugatory and the interest of the Respondent who is seeking to enjoy the fruits of his judgement. It is true that under Order 42 rule 6 aforesaid, the Applicant is required to offer security for the due performance of the decree and the Court is entitled to take into account the fact that no such security has been offered in deciding an application thereunder. I agree with the position in Mwaura Karuga t/a Limit Enterprises vs. Kenya Bus Services Ltd & 4 Others [2015] eKLR, where it was held that:
24.I also associate myself with the holding in Gianfranco Manenthi & another vs. Africa Merchant Assurance Company Ltd [2019] eKLR, where the court observed:
25.The law is that where the applicant intends to exercise its undoubted right of appeal, and in the event, it were eventually to succeed it should not be faced with a situation in which it would find itself 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. 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:
26.The Applicant has deponed in the supporting affidavit that the Applicant’s insurer is ready and willing to give security for the decretal amount as per the court’s discretion for stay of execution. He has also deponed in the supplementary affidavit that he is willing to furnish the court with a bank guarantee as security and as a condition of stay. However, this court notes that the undisclosed Applicant’s Insurer is not a party to this suit and nothing has been presented before the court to confirm the issue of security by the Applicant’s Insurer. There is no evidence of any bank guarantee between the Applicant and any bank for the intent and purpose of this matter.
27.In re Estate of John Ndungu Mubia (Deceased)(2021) eKLR which placed reliance on the case of Arun C Sharma v Ashana Raikundalia & Co. Advocates Justice Gikonyo stated that :-
Who should bear the cost of this application?
28.On the question of costs of the application, the general rule is that costs shall follow the event in accordance with the provisions of Section 27 of the Civil Procedure Act (Cap. 21). A successful party should ordinarily be awarded costs of an action unless the court, for good reason, directs otherwise. In Jasbir Singh Rai & 3 others Vs Tarlochan Singh Rai & 4 others SC. Petition No. 4 of 2012: [2014] eKLR. The Supreme Court held that costs follow the event and that the Court has the discretion in awarding such costs.
29.Taking all the above factors into account and in order not to render the intended appeal nugatory as well as to give effect to the overriding objective of the Civil Procedure Act, I find and hold that the Appellant/Applicant has fulfilled the requirements for grant of stay of execution pending appeal as stipulated under Order 42 Rule 6 of the Civil Procedure Rules.
30.Accordingly, I hereby allow the Appellant/Applicant’s application dated 16/04/2024 and grant stay of execution of the Judgment issued by Honourable B. A Luova delivered on the 4th April 2024 in Machakos SCC E017 of 2024 pending the hearing and determination of the appeal on the following conditions:a.The Appellant/ Applicant shall deposit the entire decretal sum into an interest earning account in a reputable commercial Bank, to be held by both advocates for the Parties to this appeal, within 30 days of this ruling;b.The Appellant to file and serve a record of appeal within Forty-Five (45) days of this ruling;c.Costs shall be in the cause;d.The appeal shall be mentioned after Forty-Five (45) days for directions on the mode of disposal of the appeal.
31.It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT MACHAKOS THIS 12 TH DAY OF NOVEMBER 2024NOEL I. ADAGIJUDGE