Matata & another v Rono & another (Civil Appeal E034 of 2024) [2024] KEHC 2799 (KLR) (19 March 2024) (Ruling)
Neutral citation:
[2024] KEHC 2799 (KLR)
Republic of Kenya
Civil Appeal E034 of 2024
FR Olel, J
March 19, 2024
Between
Philomena Katheu Matata
1st Appellant
Green Alliance Limited
2nd Appellant
and
Suzzaine Mwirebanga Rono
1st Respondent
Attorney General
2nd Respondent
Ruling
A. Introduction
1.The application before this court is the Notice of Motion application dated 16th February 2024 brought pursuant to provisions of Section 1A, 1B, 3, 3A of the Civil Procedure Act, Order 22, Rule 22Order 51 rule 1 of the Civil Procedure Rules, and all other enabling provision of law. The applicant seeks for orders that;a.Spentb.Spentc.That this Honourable court be pleased to issue an order staying the execution of the judgement dated 18th January 2023, for the sum of Kshs.1,132,000/= against the Appellants/Applicants pending hearing and determination of the intended Appeald.That costs of this Application be provided for.
2.The application is supported by the ground on the face of the said application and the supporting affidavit of Philomena Katheu Matata dated 16th February 2023 and opposed by the respondents who filed a replying affidavit through the 1st respondent Suzzaine Mwirebanga Rono dated 1st March 2024.
B. Pleadings
3.The 1st Appellant does depone that judgement had been made in favor of the respondents in the sum of Kshs.1,132,000.00/= being plus costs and Interest. Being dissatisfied by the said award, they had filed this appeal, which appeal had overwhelming chance of success based on the various grounds of appeal raised. The applicants further averred that unless stay of execution was granted, the respondents would embark on execution process, which would be highly prejudicial to them and that would render the appeal filed to be nugatory. Finally they also averred that they were ready and willing to abide by any order of this court as shall be issued with regard to security.
4.This application is opposed by the Respondents through the Replying Affidavit’s dated 29th September 2023 sworn by the 1st respondent Suzzaine Mwirebanga Rono, who maintained that the said application was brought in bad faith, the appeal had no chance of success and the appeal was filed with ill intention to obstruct and delay the course of justice. The applicant further averred that she operated a Mpesa shop, together with other banking services as an agent of Equity Bank and Kenya Commercial Bank amongst others and therefore the decretal sum of Kshs.1,000,000/= was merger and she was in a position to refund the same without any problems should the Appellant be successful. The 1st Respondent thus urged this court to dismiss the said application dated 16th February, 2024.
Analysis & Determination
5.I have carefully considered the Application, Supporting Affidavit, and the Respondent’s Replying Affidavit. The only issue which arise for determination is whether this court should grant stay of execution of the Judgment/Decree dated 18th January 2024 issued in Mavoko PMCC No 49 OF 2020.
6.Stay of Execution is provided under Order 42 Rule 6 of the Civil Procedure Rules 2010 as follows;
7.The three conditions to be fulfilled can therefore be summarized as follows;a.that substantial loss may result to the applicant unless the order is madeb.application has been made without unreasonable delayc.security as the court orders for the due performance
8.These principles were enunciated in Butt v Rent Restriction Tribunal [1979] the Court of Appeal stated what ought to be considered in determining whether to grant or refuse stay of execution pending appeal. The court said that: -a.The power of the court to grant or refuse an application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal.b.Secondly, 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.c.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.d.Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. The court in exercising its powers under Order XLI Rule 4(2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security of costs as ordered will cause the order for stay of execution to lapse.
i. Undue Delay
9.As to whether the Application has been filed without undue delay, judgment was entered on 18th January 2024. The memorandum of appeal was filed on 16th February 2024, simultaneously with this application, all of which were done within one month. This court thus finds that the appeal and this application for stay of execution has been filed without undue delay.
ii. Substantial Loss
10.On the issue of substantial loss, Ogolla, J in Tropical Commodities Suppliers Ltd & Others v International Credit Bank Ltd (in liquidation) [2004] 2 EA 331 stated that:
11.In the case of James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR the court expressed itself as hereunder:
12.The same position was adopted by Kimaru, J in Century Oil Trading Company Ltd v Kenya Shell Limited Nairobi (Milimani) HCMCA No. 1561 of 2007 where he stated that:
13.The respondent did file a replying affidavit to rebut the averments made by the applicants in the supporting affidavit, but never filed any affidavit of means to show or prove that indeed if she is paid the decretal sum and the appeal is successful, she will be in a position to refund the decretal sum paid to her. It may well be true that she runs a successful Mpesa shop and Banking Agency shop, but that by itself did not prove that she is financially liquid and capable of refunding the decretal sum if paid out.
14.In the case of National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another (2006) eKLR the Court of Appeal held thus;
15.Guided by the above authorities and in the absence of the requisite proof from the 1st Respondent that she is a person of means, I find that the Appellants have satisfied this court that they 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
16.As regards deposit of security, the court observed in the case of Gianfranco Manenthi & Another v Africa merchant Assurance Co. Ltd [2019] eKLR it was held that:-
17.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.
18.The issue of adequacy of security was dealt with by the Court of Appeal in Nduhiu Gitahi v Warugongo [1988] KLR 621; 1 KAR 100; [1988-92] 2 KAR 100 where the Court of Appeal expressed itself as follows:
19.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. The 1st Respondent on the other hand submitted that the appellant should pay out the decretal sum, which she was in a position to refund, should they lose this Appeal. The appellant has challenged the entire Judgment finding them liable for malicious prosecution
Disposition
20.Taking all relevant factors into consideration and in order not to render the intended appeal illusory, and since based on the grounds of appeal, the same is as against quantum awarded, I do grant stay of execution of the decree herein on condition that;a.The Appellant/Applicant do deposit a sum of Kenya shillings five hundred thousand (Kshs.500,000/=) into court as security of this Appealb.This condition is to be met within 45 days from the date of this ruling or in default, this application shall be deemed to have been dismissed with costs and the Respondent shall be at liberty to execute.
21.The costs of this Application will be in the cause.
22.It is so ordered.
RULING WRITTEN, DATE AND SIGNED AT MACHAKOS THIS 19TH DAY OF MARCH, 2024FRANCIS RAYOLA OLELJUDGEDELIVERED ON THE VIRTUAL PLATFORM, TEAM THIS 19TH DAY OF MARCH, 2024In the presence of: -Mr. Kimunda for AppellantMr. Kipkima for Kamolo for RespondentSam Court Assistant