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JudgmentJOSEPH NYAMBANE MOGAKA VS LISPER KERUBO ONYANCHA7 min read

JOSEPH NYAMBANE MOGAKA VS LISPER KERUBO ONYANCHA

High Court at Nyamira High Court · · Wilfrida A. Okwany


Introduction

  1. This ruling is in respect to the Application dated 5th September 2024 wherein the Applicant seeks the following orders: -
  2. Spent
  3. Spent
  4. THAT the Honourable Court be pleased to grant leave to the Applicant to file an Appeal out of time from the Judgment and decree of this honourable court file Keroka CMCC No. E005 of 2022 Lisper Kerubo Onyancha Vs Kerubo Onyancha Vs Joseph Nyambane Mogaka delivered on 26th June 2024.
  5. THAT there be an Order of stay of execution of Judgment in file Keroka CMCC No. E005 of 2022 Lisper Kerubo Onyancha vs. Joseph Nyambane Mogaka delivered on 26th June 2024 plus costs and interest pending the hearing and determination of the intended Appeal.
  6. THAT this Honourable Court be pleased to order stay of assessment of the Plaintiff’s Bill of costs pending hearing and determination of the intended Appeal.
  7. THAT as a condition for stay of execution pending the hearing and determination of this Appeal, the Applicant be and is hereby ordered provide/issue security for the entire decretal sum/amount in the form of a Bank Guarantee to be issued by Family Bank Limited.
  8. THAT costs of this Application to abide the outcome of the intended Appeal.
  9. The application is supported by the Applicant’s Affidavit and is premised on the following grounds: -
  10. THAT Judgment in the lower court file, Keroka CMCC No. E005 of 2022 Lisper Kerubo Onyancha Vs Joseph Nyambane Mogaka was delivered on 26th June 2024.
  11. THAT we followed up in the registry to peruse CMCC No. E005 of 2022 Lisper Kerubo Onyancha Vs Joseph Nyambane Mogaka so as to read the content of the Judgment and advice the client, however the lower court file could not be traced and as a result we were unable to obtain a copy of the said judgment, nonetheless, we informed the Applicant and instructing client on the contents of the said Judgment as indicated in the court file.
  12. THAT the Applicant is aggrieved by the Judgment on quantum and intends to file an Appeal against the Respondent herein.
  13. Unless this application is certified Urgent and a temporary stay of execution granted pending the inter-partes hearing of the Application, there is imminent threat of execution against the Applicant as there are no orders of stay of execution and that will render this Application and intended Appeal nugatory.
  14. THAT further delay was also occasioned by lower court civil registry as they could not trace the file on time and we also had to wait for the Judgment to be typed.
  15. THAT the delay as indicated above is excusable and has been explained.
  16. THAT the Applicant being aggrieved with the decision of this Honourable court intends to file an Appeal against the Judgment of the trial Magistrate delivered on 26th June 2024, file Keroka CMCC No. E005 of 2022 Lisper Kerubo Onyancha Vs Joseph Nyambane Mogaka.
  17. THAT the Applicant contends that quantum awarded was not proved and was excessive and should execution proceed the Applicant stand to suffer irreparable loss and prejudice as the ability of the Respondent herein to refund the decretal amount is unknown.
  18. THAT the intended appeal is meritorious with high chances of success.
  19. THAT stay of assessment on the lower court file is necessary as the instruction fees on the Judgment sum may reduce in the event the Appeal is successful.
  20. THAT the applicant’s insurance is ready, willing and able to provide a bank guarantee from Family Bank equal to the due performance of the Decree, as security pending the hearing and determination of the intended Appeal.
  21. Unless this Application is certified Urgent and a temporary stay of execution granted pending the inter-partes hearing of the Application, there is imminent threat of execution against the Applicant as there are no orders of stay of execution and that will render this application and intended Appeal nugatory. 
  22. Applicant will suffer substantial loss if the application is not certified urgent and execution of the Judgment and decree is not stayed as the Respondent will execute, proclaim and attach the Applicant’s property.
  23. The Respondent opposed the application through the Replying Affidavit of his Advocate, Mr. Charles Orayo, who avers that the delay in filing the appeal has not been properly explained so as to satisfy this court to exercise its discretion to grant leave to appeal out of time.
  24. He further states that the application does not satisfy the conditions set for the granting of orders for stay of execution.
  25. The Respondent’s case was that should the court be inclined to grant the prayers sought, then the Applicant should be ordered to deposit the entire decretal sum in a joint interest earning account in the names of the parties’ Advocates.
  26. When the application came up for mention on 23rd October 2024 to confirm the filing of submissions, Mr. Orayo, Learned Counsel for the Respondent indicated that his client was willing to concede to the application as long as the decretal sum is deposited in a joint interest earning account as a condition for stay of execution.
  27. Ms. Ogato, Learned Counsel for the Applicant, on the other hand, submitted that her client was willing to provide a bank guarantee as security for the due performance of the decree. 
  28. Parties did not agree on the type of security to be deposited and the court directed that the application be canvassed by way of written submissions.
  29. I have considered the pleadings filed herein and the parties’ rival submissions.
  30. Order 42 Rule 6 of the Civil Procedure Rules stipulates as follows: -

Stay in case of appeal

6 (1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.

(2) No order for stay of execution shall be made under subrule (1) unless—

(a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and

(b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.

(3) Notwithstanding anything contained in subrule (2), the court shall have power, without formal application made, to order upon such terms as it may deem fit a stay of execution pending the hearing of a formal application.

(4) For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given.

(5) An application for stay of execution may be made informally immediately following the delivery of judgment or ruling.

(6) Notwithstanding anything contained in subrule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.

  1. Having noted that the parties herein were not able to close ranks on the type of security to be provided, I find that this court does not need to belabor and discuss if all the conditions for the granting of the orders of stay of execution have been fulfilled.  I have already noted that parties were in agreement that the orders sought may be granted as long as adequate security is provided.
  2. Courts have taken the position that in an application for stay of execution pending appeal, it must balance the rights of the Applicant, to an opportunity to pursue his appeal and the Respondent, to enjoy the fruits of his decree. In Intel corporation vs. Via Technologies Inc. 2002 3 HKC 650 where it was stated that:

"In stay of proceedings the court must consider what would serve the ends of justice between the parties to the litigation and the administration of justice. Generally, a stay should not cause an injustice to the plaintiff. The applicant for stay must satisfy the court that continuing the proceedings would be unjust to him. Where the plaintiff continues proceedings as of right he should not be deprived of the right to continue those proceedings in the absence of very good reasons. In considering the interest of justice, plainly one must consider the claims of both parties (See Bertel Ltd vs. Balt Brassiere Co. Ltd 1970 RPC 469

  1. In the present case, the Respondent expressed his apprehension over the bank guarantee offered by the Applicant as security for the due performance of the decree on the basis that the same did not specifically cover the instant claim.
  2. In the circumstances of this case, I find that the most appropriate order on security for the due performance of the decree is the order for the deposit of the entire decretal sum in a joint interest earning account.
  3. Consequently, I allow the Application dated 5th September 2024 in the following terms: -
  4. The Applicant shall, within 30 days from the date of this ruling, deposit the entire decretal sum in a joint interest earning account to be held in the names of the parties’ Advocates herein.
  5. That in the event of failure to comply with orders in (a) above, the stay orders shall automatically lapse and the Respondent shall be at liberty to proceed with the execution.
  6. The costs of this Application shall abide the outcome of the appeal.
  7. Orders accordingly.

Ruling dated, signed and delivered virtually via Microsoft Teams at Nyamira this 30th day of January 2025.


    JOSEPH NYAMBANE MOGAKA VS LISPER KERUBO ONYANCHA JOSEPH NYAMBANE MOGAKA VS LISPER KERUBO ONYANCHA