1. The applicant is dissatisfied with the Judgment of the trial court dated 27/3/2024 in Kwale Magistrates Court Civil Case No. 149 of 2017 where judgment was entered in favour of the 1st respondent as plaintiff in the case as against the applicant as defendant in the sum of KShs 402,550/=. The applicant has indicated that he has appealed the said decision by filing a memorandum of appeal dated 30/5/2024. He has also filed a notice of motion dated 31/5/2024 and brought under section 1A and 1B of the Civil Procedure Act, Order 51 and Order 22 Rule 22(1) of the Civil Procedure Rules and other enabling provisions of the law.
2. The application seeks orders that pending the hearing and determination of the appeal this court be pleased to stay execution and proceedings in PMCC No. 149 of 2017 and most specifically staying the execution of the judgment and decree made on 27/3/2024.
3. It also seeks that the costs of the application be provided for.
4. It would appear then that citing Order 22 Rule 22(1) as the Rule upon which the application is based is not correct. This Rule provides that:
Rule 22. (1)The court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay the execution of such decree for a reasonable time to enable the judgment-debtor to apply to the court by which the decree was passed, or to any court having appellate jurisdiction in respect of the decree or the execution thereof, for an order to stay the execution, or for any other order relating to the decree or execution which might have been made by the court of first instance, or appellate court if execution has been issued thereby, or if application for execution has been made thereto.
5. Clearly this court is not the court to which a decree has been sent for execution as provided in the above rule.
6. The application is based on the grounds on the face thereof and further supported by the affidavit of Esther Ndung’u, advocate working with Fidelity Insurance Co. Ltd the insurer of the applicant/appellant under the doctrine of subrogation.
7. The applicant deposes that the award made to the plaintiff/1st respondent herein was excessive, considering the nature of the injuries, apportionment of liability, the facts of the case and the evidence adduced at the hearing. The advocates for the 1st respondent have served a demand letter upon the applicant’s advocates demanding the sum of KShs 536,472.50 together with costs of the suit and interest. The applicant is therefore apprehensive that the 1st respondent and her agents are likely to take adverse action in execution against the applicant in which event, the appeal filed will be rendered nugatory and the applicant stands to suffer substantial loss damage. Finally, that the application has been filed without unreasonable delay.
8. The application is opposed through a replying affidavit sworn on 13/6/2024 by the 1st respondent Florence Zighe Kambale. Her first ground is that there is no appeal on record in the first place as the memorandum of appeal was paid for on 31/5/2024 when judgment had been entered on 27/3/2024 and consequently, the application is incurably defective and bad in law. Further that there is inordinate delay in filing the application and the same is not explained.
9. The 1st respondent deposes further that it has been almost eight years since she was injured in the accident leading to the claim in the suit and further keeping her from getting compensation is not fair. In any case, the applicant’s had committed to pay the decretal sum and even asked her advocates for their bank details only to turn around and file the present application. She therefore finds to be an afterthought.
10. The 2nd respondent did not respond to the application.
11. The application was disposed of by way of written submissions filed by learned counsels for both parties. The issue for determination is whether to grant stay of execution of the trial court’s decree pending the hearing and determination of the appeal?
12. To begin with, as pointed out by learned counsel for the 1st respondent in his submissions, the submissions by the applicant are addressing an application for extension of time and not an application for stay of execution which this court is considering. This is in spite of learned counsel for the 1st respondent in a letter dated 1/8/2024 bringing it to the attention of learned counsel for the applicant that there was no application dated 24/7/2024 as the one being addressed in their submissions. Instead, the advocates for the applicant simply changed the date of the application referred to in their submissions from 24/7/2024 to 31/5/2024 and left the entire submissions on extension of time as they had been before. As at the time of writing this ruling I have not seen an application for extension of time to file the appeal filed by the applicant herein. Neither have I seen submissions on the present application for stay of execution. Consequently, the submissions by the applicant, in spite of being filed twice, are wholly misplaced.
13. One of the grounds opposing the application is that there is no competent appeal filed by the applicant upon which the application for stay of execution can be based. In spite of the deposition, the applicant never filed a further affidavit in response thereto nor even sought orally in court nor filed an application for extension of time. Instead, the submissions by learned counsel for the applicant are a concession that indeed the appeal was filed out of time when they submit that the delay in filing the appeal was inadvertent and excusable due to an oversight and honest mistake on the part of the applicant’s insurer which is regrettable.
14. This application ought to be brought under Order 42 Rule 6 which governs applications for stay of execution and provides as follows:
6. Stay in case of appeal [Order 42, rule 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) …
15. It is apparent from the foregoing provisions that an application for stay of exaction has to be based on a pending appeal that is competent. In this case, there is no competent appeal filed by the applicant. The memorandum of appeal filed herein is incompetent for being filed out of time and without leave of the court even as I note that had the application been made for extension of time at the same time of filing the memorandum of appeal, it would probably have been granted as there would have been no unreasonable delay in filing the same.
16. Assuming that there was a competent appeal on record, I would have to consider the merit of the application.
17. The principles guiding the grant of a stay of execution pending appeal are well settled by various decisions of the High Court and the Court of Appeal as provided under Order 42 rule 6(2) of the Civil Procedure Rules which provides that:
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.
18. In this application, the applicant has not demonstrated any peculiar circumstances that necessitate withholding of the decretal sum from the decree holder nor did he state that he would suffer any substantial loss which is the corner stone in granting of an application for stay and without any evidence the 1st respondent should not be kept out of her money. In the case of Equity Bank Ltd v Taiga Adams Co. Ltd [2006] eKLR it was held;
“In the application before me, the applicant has not shown or established the substantial loss that would ensue if this stay is not granted. The only way of showing or establishing substantial loss is by showing that if the decretal sum is paid to the Respondent – that is execution is carried out – in the event the appeal succeeds, the Respondent would not be in a position to pay- reimburse – as he/it is a person of no means. Here, no such allegation is made, much less established, by the appellant/applicant.”
19. Similarly, in the present case, it has not been shown that if the decretal sum paid to the 1st respondent and the appeal succeeds, then she will not be able to reimburse the applicant. In any case, the applicant’s reservations with the judgment would only be on the quantum of damages awarded. This means that in any event, the 1st respondent is bound to get a certain portion thereof and therefore the applicant would not be suffering loss of the entire decretal sum if it is paid out.
20. Indeed, to grant or refuse an application for stay of execution pending appeal is discretionary. The court when considering the application for stay however, must balance the interests of the appellant with those of the respondent.
21. The applicant did not deem it fit to address the issue of whether or not if the decretal sum is paid, he may not recover it from the 1st respondent and also to provide security for the due performance of the decree. I find that these two requirements under the rules have not been met in the present case. I therefore find no reason to deny the 1st respondent the fruits of her judgement especially bearing in mind that it has taken so long in coming.
22. The upshot is that applying the above principles, I hereby disallow the application before me and dismiss it with costs to the 1st respondent.
Right of appeal 30 days
Orders accordingly.
Delivered, dated and signed at Kwale on the Virtual Platform, Teams this 6th day of November, 2024.
ANDAYI W. F.
JUDGE
In the presence of:
Machuka Ms for Appellant.
Kazungu for the 1st Respondent.
N/A for the 2nd Respondent
Johnson Court Assistant.