Introduction
1. This ruling is in respect of the notice of motion, dated 13th February, 2023. Through the motion/application, the applicant seeks an order of stay of execution of the judgment delivered 19th January 2024 and/or any consequential orders emanating from the judgment pending the hearing and determination of an appeal he intends to file before the Court of Appeal against the decision of this court delivered on 19th January 2024 dismissing his appeal against the decision of the lower court.
2. The application is premised on the grounds on its face and is supported by the affidavits sworn on 13th February 2022 (supporting affidavit). The applicant avers that he was dissatisfied with the judgment of this court; that he has since filed a notice of appeal against the decision of this court dismissing his appeal and has requested for typed proceedings for purposes of preparing a memorandum of appeal and a record of appeal; that his appeal will be on pure points of law which if determined in his favour, will affect the decision of this court and that of the lower court; that unless stay of execution is granted, the respondent may execute the orders issued in her favour thereby occasioning him irreparable loss and prejudice.
3. In opposing the application, the respondent filed the replying affidavit she swore on 13th March, 2024. The respondent has deponed that the application is meritless, frivolous, brought in bad faith (meant to frustrate her from enjoying the fruits of his litigation); that she has been denied enjoyment of her land which she bought in 2004 and fully paid for and that the appellant wants to further keep her out of the property without undertaking to compensate her for the losseses she has suffered for all those years. The respondent acknowledges that the appellant has a right of appeal to the Court of Appeal but states that the appellant’s right must be balanced with her right as a successful litigant to enjoy the fruits of her judgment; that she paid Kshs. 210,000/- as consideration for the suit property over 20 years ago and has lost use of the money all that time. The respondent urges the court to consider all those facts in balancing the right to the appellant and her right to enjoy the fruits of her judgment. The respondent details the woes she has undergone under the mischievous conduct of the appellant and states that unless the appellant is evicted from the suit property, she will continue suffering immense losses.
4. Concerning the proposed security of costs of Kshs. 100,000/-, the respondent avers that it is not enough to secure even the costs of the appeal.
5. Arguing that the appellant has been less than candid with the court, the respondent avers that the appellant does not deserve exercise of the court’s discretion in his favour as he has approached the court with unclean hands (the respondent terms the appellant a mala fide and cunning vendor of land).
6. The respondent further avers that if stay is granted, she will suffer real prejudice.
7. The respondent contends that the appellant has not demonstrated what substantial loss he would suffer if she accesses the suit property.
8. In the event the court is inclined to allow the appellant’s application for stay, the respondent urges the court to order him to deposit Kshs. 1,000,000/- as security for costs and not the Kshs. 100,000/- offered by the appellant.
9. Pursuant to directions given by the court to the effect that the application be disposed off by way of written submissions, the parties filed submissions which I have read and considered.
SUBMISSIONS
Appellant’s Submissions
10. In his submissions filed on 22nd March 2024, the appellant reiterates the averments in his supporting affidavit and submits that unless the stay is granted, should his appeal succeed, he would suffer substantial loss in that he would have been evicted from the suit property (which he claims is his home which took time to construct. Reconstruction of the home will be expensive). The appellant is also apprehensive that the respondent may also sell the suit property to a third party.
11. As to whether the application has been filed without unreasonable delay as by law required, it is pointed out that judgment was delivered on 19th January 2024 and a notice of appeal filed on 23rd January 2024, barely a week after the judgment was delivered, hence there was no unreasonable delay.
12. On the issue of security for costs, it is pointed out that a security of Kshs. 100,000/- was deposited in a joint interest account following an order issued by the court in respect of the appellant previous application for stay and submitted that the said amount suffices for security for the appeal hereto.
13. According to the appellant, the proposal by the respondent of Kshs. 1,000,000/= is too much to be deemed as security. Ordering such an amount as security for costs would be tantamount to punishing the appellant/applicant as security for costs should not be equated to the value of the property. Reference is made to the case of Kisenger v. Kiptulwo (Environment & Land Case 49 of 2022) (2024) KEELC 172 (KLR) 26 January 2024 (Ruling), where this court stated:-
“...having considered the peculiar circumstances of this case where the subject matter of the Appeal is land that is not only registered in the name of the defendant but also occupied by the applicant and his family, I am satisfied that the applicant, if evicted from the suit property, in the event he succeeds in his Appeal, would have suffered substantial loss and irreparable loss and prejudice...”
Respondents Submissions
14. In her submissions filed on 25th March 2024, reference is made to the appellant/applicant’s averment that unless stay is granted, the respondent may proceed with execution and that the appeal will not take long before it is fully determined and submitted that the appellant /applicant has undetermined and unfounded fears as he buys time to further his enjoyment of the suit land and continued denial of the respondent’s crystallized right of enjoyment of the suit property.
15. Concerning the appellant/applicant’s contention that the suit property is his matrimonial home, the respondent contends that the appellant/applicant had moved out of the suit property and demolished the temporary structures he had erected thereon. According to the respondent, the appellant/applicant lives in the neigbourhood in rented premises.
16. The respondent reiterates her contention that the appellant/applicant has not demonstrated that he will suffer irreparably if the respondent executes the decree issued in her favour.
17. The respondent further submits that the appellant /respondent has not demonstrated how execution of the decree issued in her favour would render the appeal nugatory.
18. The respondent acknowledges that the application was made without unreasonable delay as by law required but submits that the applicant has not made up a case for being granted the orders sought in that he has not demonstrated that unless stay is granted, he will suffer loss and that he has failed to furnish sufficient security for due performance of such decree as may issue against him.
19. The respondent urges the court in considering the application, to balance her right as a successful litigant with that of the appellant to appeal to a higher court and in so doing, take into account that she has been kept away from the suit property for over 20 years.
Analysis and determination
20. I have carefully considered the appellant’/applicant’s application, the response thereto and the submissions by the respective parties in respect thereof.
21. The sole issue for the court’s determination is whether the appellant/applicant has made up a case for being granted an order of stay pending the hearing and determination of his intended appeal.
22. As pointed out in the respondent’s response, the respondent obtained title to the suit property in 2004. She has not enjoyed the suit property for over 20 years that this suit has been pending in court. The suit has on two occasions been determined in her favour.
23. This court is called upon to balance the competing interests of the respondent as the successful litigant and the appellant who is exercising his right of appeal.
24. In the circumstances of this case, where the subject matter of the suit is land currently registered in the name of the respondent but occupied by the appellant, I am convinced that if stay is denied and the respondent takes over the suit property she may deal with it in a manner prejudicial to the outcome of the appeal, should the appellant succeed in his appeal.
25. My considered view of this matter is that the prejudice to be suffered by the respondent can be addressed by fashioning appropriate reliefs to take into account the interests of the respondent as the registered proprietor of the suit property but without prejudizing the right of the appellant who is exercizing a legally enshrined right of appeal to a higher court.
26. Doing the best I can in the circumstances of this case, I am inclined to allow the appellant/applicant’s application for stay pending hearing and determination of his intended appeal to the Court of Appeal on the following conditions:-
i) The appellant/applicant shall, within 21 days from the date of delivery of this ruling, deposit in a joint interest earning account to be opened in the joint names of the advocates for the parties, Kshs.450,000/= being security for costs, of the proceedings before the lower court, the appeal before this Court and the appeal before the Court of Appeal;
ii) The appellant/applicant shall, within 21 days from the date of delivery of this ruling, deposit in court, the original title to the suit property, which he has been holding after the same was handed over to him by the respondent as security for performance of the respondent’s contractual obligation to him and which he failed to hand over to the respondent after the respondent fulfilled her contractual obligations to him;
iii) Additionally, the appellant/applicant shall, within 21 days from the date of delivery of this ruling, file an undertaking to pay to the respondent such mesne profits, as may be assessed by the trial court, based on the period of time he has been in use and occupation of the suit property contrary to the respondent’s interest therein.
27. If the appellant/applicant does not comply with all the conditions herein given within the time given, the application for stay pending appeal shall stand automatically dismissed upon lapse of the time given.
28. Orders accordingly.
Dated, signed and delivered at Iten this 13th day of June, 2024.
Ruling delivered virtually in the presence of:-
Mr. Matoke for the applicant
Ms. Kiget holding brief for Mr. Arusei for the respondent
Court Assistant: Alex