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JudgmentCHARLES METTO VERSUS AMOS KOSGEY AND ANOTHER7 min read

CHARLES METTO VERSUS AMOS KOSGEY AND ANOTHER

High Court at Milimani High Court · · Peter Mulwa

Introduction

  1. By the court’s judgment dated 13th October 2020, the Plaintiff’s suit was allowed and judgment was entered in his favour and against the Defendants in the sum of USD 152,480.52, Kshs. 1,000,000.00 as general damages, interest and costs of the suit. The Defendants have evinced their intention to appeal against this judgment at the Court of Appeal and they have now approached the court by way of the Notice of Motion dated 30th November 2020 made, inter alia, under sections 1A, 1B and 3A of the Civil Procedure Act and Orders 9 Rule 9 and 10, 42 Rule 6(2), 51 Rule 1 of the Civil Procedure Rules principally seeking to stay the execution of the judgment pending hearing and determination of the intended appeal.
  2. The application is supported by the grounds set out on its face and the supporting affidavit of the 2nd Defendant sworn on 30th November 2023. It is opposed by the Plaintiff through the Grounds of Opposition dated 11th May 2021.  The court directed that the application be disposed by way of written submissions which I have made references to.

The application

  1. The Defendants contend that they have already lodged a Notice of Appeal within the statutory timelines on 23rd October 2020 and that they have equally applied and paid for certified copies of typed proceedings on the same date. Further, that they have since obtained copies of the draft typed recorded proceedings and have commenced preparation of the record of appeal awaiting certified copies of the typed recorded proceedings. They aver that failure to grant a stay of execution would greatly prejudice their rights as they proceed to pursue this application and their intended appeal before the Court of Appeal.
  2. The Defendants are apprehensive that if the Orders sought herein are not granted and the Plaintiff is allowed to execute the judgment sought to be appealed against, it will lead to irreversibly punishing the Defendants. They state that they have an arguable appeal with high and overwhelming chances of success and that the same is not merely frivolous or vexatious and that failure by the Court to immediately grant a stay of execution pending the hearing and determination of the intended appeal would greatly prejudice their right of appeal. They contend that no prejudice will be occasioned on the Plaintiff if the court allows the application and that the grounds raised in the intended appeal impugning the decision of the court are not flimsy but rather raise fundamental legal issues that the Appellate Court must rectify and pronounce itself accordingly.
  3. In sum, the Defendants contend that unless the impugned decision and orders therein of the court are stayed, the Plaintiff will proceed and execute its decision and in effect render the intended appeal nugatory and a mere academic exercise.

Plaintiff’s reply

  1. The Plaintiff opposes the application on the grounds that it does not meet the threshold of granting a stay of execution under Order 42 Rule 6 of the Rules. That the Defendants will not suffer substantial loss or any loss at all, the application has been brought with undue delay, the Defendants have not demonstrated a willingness to pay into court security of due performance and that no appeal has been lodged in the matter even after lapse of the prescribed timelines.
  2. For these reasons, the Plaintiff urges that it is in the interest of justice that the application be dismissed with costs.

Analysis and determination

  1. The principles that guide the court in an application for stay of execution and proceedings pending an appeal are grounded in Order 42 Rule 6 (2) of the Civil Procedure Rules. In order to succeed, the applicant must demonstrate substantial loss may result unless the order of stay is made. It must also demonstrate that the application has been brought without undue delay and lastly, the applicant must give such security as the court may order for the due performance of the decree or order as the case may be.
  2. These principles have been buttressed by decisions of superior courts where it was added that the power to order stay of execution is discretionary and must be exercised in such a way that the appeal is not rendered nugatory and that this discretion is based on the facts and circumstances of each case (see Halai & Another v Thornton & Turpin [1990] KECA 65 (KLR) and Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR).
  3. Even though the Plaintiff averred that the present application was filed late, I note that the same was filed just over a month since the court’s judgment. I find this to be timely. On substantial loss, I am persuaded by the position of Warsame J., (as he then was) in Samvir Trustee Limited v Guardian Bank Limited [2007] KEHC 2438 (KLR), a case that has been cited by the Plaintiff, where he expressed himself as hereunder:

“Every party aggrieved with a decision of the High Court has a natural and undoubted right to seek the intervention of the Court of Appeal and the Court should not put unnecessary hindrance to the enjoyment and exercise of that right by the defendant. A stay would be overwhelming hindrance to the exercise of the discretionary powers of the court…The Court in considering whether to grant or refuse an application for stay is empowered to see whether there exist any special circumstances which can sway the discretion of the court in a particular manner. But the yardstick is for the court to balance or weigh the scales of justice by ensuring that an appeal is not rendered nugatory while at the same time ensuring that a successful party is not impeded from the enjoyment of the fruits of his judgment. It is a fundamental factor to bear in mind that, a successful party is prima facie entitled to the fruits of his judgment; hence the consequence of a judgment is that it has defined the rights of a party with definitive conclusion. The respondent is asserting that matured right against the applicant/defendant…For the applicant to obtain a stay of execution, it must satisfy the court that substantial loss would result if no stay is granted. It is not enough to merely put forward mere assertions of substantial loss, there must be empirical or documentary evidence to support such contention. It means the court will not consider assertions of substantial loss on the face value but the court in exercising its discretion would be guided by adequate and proper evidence of substantial loss…The overriding objective of the court is to ensure the execution of one party’s right should not defeat or derogate the right of the other. The Court is therefore empowered to carry out a balancing exercise to ensure justice and fairness thrive within the corridors of the court. Justice requires the court to give an order of stay with certain conditions.”

  1. Based on the above, it is clear that for the Court to grant stay of execution, the Defendant needs to satisfy the Court that it will suffer substantial loss. This is done by the applicant showing that the respondent is not a person of means, and payment of the decretal sum prior to the appeal would put the same beyond the reach of the applicant (see Lucy Nyamanu Kimani v Lawrence Mburu Muthiga [2006] KEHC 1781 (KLR).
  2. Going through the Defendants’ deposition, I am inclined to agree with the Plaintiff that they have not demonstrated what loss they are likely to incur should the stay orders not be granted. The fact that the Plaintiff has commenced execution is not reason enough to claim loss because it is within his right to execute and obtain the benefits of his judgment. They have also not demonstrated that the Plaintiff is not a person of means and such they will be unable to recover the decretal amount.
  3. On security, it is the Court which determines the security upon ordering stay to ensure the due performance of the obligations by the applicant as to costs and to satisfy the decree and an applicant ought to depose that it is ready to provide security for the court to exercise discretion in its favour (see Focin Motorcycle Co. Limited v Ann Wambui Wangui & another [2018] KEHC 8358 (KLR)].
  4. The Defendants have not deposed that they are willing to offer such security for the due performance of the decree pending the appeal. There cannot be a stay pending appeal without security being furnished and since the Defendants appear unwilling to offer the same, their quest for an order of stay is halted at this point. It should not be lost that the conditions that satisfy the court that an order of stay of execution under Order 42 Rule 6 of the Rules ought to be granted must be fulfilled conjunctively, meaning all three conditions must be met simultaneously and that failure to satisfy any one of the stipulated tenets is fatal to the application (see Equity Bank Limited v Taiga Adams Company Limited [2006] KEHC 860 (KLR)  and Morris Guchura Njage t/a Morris Njage & Company v Liza Catherine Wangari Mwangi [2021] KEHC 8939 (KLR)] 
  5. Thus, whereas the Defendants might have brought the application without undue delay, they have failed to demonstrate the substantial loss that they will suffer if the stay is not granted and that they are unwilling to provide such security as may be determined by court. In the foregoing, I find that the Defendants have not made out a case for the grant of an order of stay of execution of the court’s judgment pending their appeal before the Court of Appeal.

Disposition

  1. For the reasons stated above, I find that the Defendants’ application dated 30th November 2020 lacks merit and is dismissed with costs.

RULING delivered virtually, dated and signed at NAIROBI

This 7th day of November 2024.

…………………..………………

P. MULWA

JUDGE

In the presence of:

Mr. Willy for plaintiff/respondent

Mr. Muge for defendants/applicants

Court Assistant: Carlos

    CHARLES METTO VERSUS AMOS KOSGEY AND ANOTHER CHARLES METTO VERSUS AMOS KOSGEY AND ANOTHER