Before me is the Notice of Motion application dated 25th July 2024 supported by the Affidavit of the first applicant seeking stay of execution of the judgment delivered on 2nd July 2024 Pending the hearing and determination of the appeal herein.
It is supported by the affidavit of Samuel Githua Gitonga and the grounds on its face.
Key is that judgment was delivered in favour of the respondent against the applicants at 100 percent liability, general damages of KSH 2 million and KSH 150,000 as future medical expenses plus costs and interests. It is the applicant’s view that this amount is excessive hence the appeal. It is the view of the applicants that the trial magistrate failed to analyse and take into consideration the appellant’s material evidence and the particulars of negligence attributed to the respondent.
The second position is that the insurance company filed a suit seeking orders to be exempted from satisfying the decree in this case in CMCC number E4473 of 2023 Nairobi which is pending for hearing and determination. It is the applicant’s fear that the respondent may not have the means to refund any monies paid should the appeal succeed after execution has taken place. The Applicants are ready and willing to furnish reasonable security to court.
The application is opposed through the replying affidavit of Ezekiel Orango Mongare. The respondent concedes that the judgment was entered in his favour and that as a successful litigant he would not object to the application if the applicant released half the Decretal sum to him and deposited the remainder in a joint interest earning bank account in the name of both Advocates.
The applicant filed submissions arguing one issue; Whether the applicants have demonstrated that the orders of stay of execution pending appeal are merited.
The applicants argue that they have an arguable appeal and that they only need one arguable point or ground and rely on DAMJI PRAQJI M’s ANDAVIA V SARAH LEE HOUSEHOLD AND BODY CARE (K) LTD (NO CITATION)
The applicants also rely on order 42 rule 6 (2) of the Civil Procedure Rules 2010 which lays down the requirements to be complied with in order for an order of stay of execution pending appeal to issue. They urge this court to be guided by BUTT Vs RENT RESTRICTION TRIBUNAL [1982]KLR 417 which set out the guiding principles on how a court should exercise its discretion .
It is further submitted that this application has been brought without unreasonable delay as judgment was delivered on the second July and the application was filed on the 25th July 2024.
On the substantial loss that may result the applicants rely on TROPICAL COMMODITY SUPPLIERS (NI CITATION) on the proposition that a substantial loss does not represent any particular mathematical formula but that it is a qualitative concept referring to any loss great or small that is of real worth of value as distinguished from a loss without value or a loss that is merely nominal.
Citing the Court of Appeal in National Industrial Credit Bank Limited versus Aquinas Francis Wasike and another (UR)Civil application #238 of 2005 Cited by the High Court in Stanley Wainaina and another vs Ridon Anyangi Mutubwa [2016]eKLR for the proposition that upon the expression of the fear that the respondent may be unable to pay back the decretal sum the evidential burden shifts to the respondent To show what resources he has since that is a matter which is peculiarly within his knowledge
It is also submitted that the motor vehicle KBW 064F was at the time of the accident insured by APA insurance company who now seek in CMCC Number E 4473 of 2023 Nairobi to be exempted from satisfying the decree in this case .It is argued that this action of the insurance company bars the applicants herein from filing a declaratory suit until their suit is hard to finality. The argument then is that there is uncertainty as to when the appellant can recover the sum from the insurance company hence it is necessary for the respondent to establish that he is a person of means as the decretal sum of KSH 2,150 000 is a substantial amount and if the entire decretal sum is paid to the respondent before their appeal is heard and determined the appeal will be rendered nugatory as the applicants are unlikely to recover the said amount.
It is submitted that without evidence by the respondent the he is a person of means; the applicants have established they are likely to suffer substantial loss If the orders are not granted.
Regarding security for the due performance of the decree the applicants rely on FOCIN Motorcycle Company Limited Vs ANN WAMBUI WANGUI & ANOTHER [2018] eKLR where the court stated as follows:
Where the applicant proposes to provide security as the applicant has done, it is a mark of good faith that the application for stay is not just meant to deny the respondent the fruits of judgment. My view is that it is sufficient for the applicant to state that he is ready to provide security or to propose the kind of security but it is the discretion of the court to determine the security. The applicant has offered to provide security and has therefore satisfied this ground for stay
It is submitted that the applicants are willing to comply with the terms the court may impose. The applicants however submit that the court exempts them from any conditions due to the actions of the insurance company for this proposition they rely on Stanley Mugweru Muchiri and two others versus John Muthike Muchira [2020]eKLR
I did not see submissions from the respondent.
That besides from what is before me the issue is whether the application has any merit and if it does what orders to issue.
Do the applicants have an arguable appeal?
At this stage this question does not address the merits of the appeal. It simply seeks a sneak view to the intended appeal based o the memorandum of Appeal.
I have perused the lower court file. It shows that after the close of the case for the plaintiff, the counsel for the defence stated that they had one witness. The matter was assigned time for hearing. Later instead of the witness testimony it states “See CC E053/2023…Proceedings therein adopted herein”
Thereafter parties file submissions and the Judgment is delivered.
Except for what is written in the trial court’s Judgment, I have searched for the evidence of the applicants or their witness in the record in vain. (the Lower Court file is in the Appeal file)
If other than putting in a statement of defence the applicants did not put up a contest (in terms of evidence) against the respondent in the subordinate court what contest can they raise here, to warrant the denial of the enjoyment of the fruits of his judgment?
There was no delay in filing this application. The application was filed in time.
Will the applicants suffer substantial loss?
True, the sum involved is not small. The Respondent has not established his means except that in the record, he states he is an employee of the government as a driver at the material time. however, there are other authorities, that that by itself cannot be the sole reason to deny a successful litigant the fruits of his Judgment. My considered view is that each matter must be considered on its own facts and merits.
The respondent herein is prepared to concede to the application if half the decretal sum is released to him. The applicants counter this with two arguments: that his means are not known, and that their insurance company is seeking to remove itself from the responsibility of paying.
On the second argument the respondent has urged the court to find that that insurance company is not a party to this matter. That is a fact. How does the alleged suit affect the respondent herein? Until that suit is heard and determined, and for as long as there is no order barring, the right of the respondent to his Judgment cannot be held in abeyance on a suit whose outcome is unknown. Hence that argument is untenable.
On the first argument, the court would consider this is determining the orders to issue.
Should the court grant unconditional stay?
The case relied upon by the applicants is distinguishable as the facts are not similar to this one. The circumstances described by the applicants call for there to be security for the performance of the decree in this case because on their own word, there is also the possibility that the applicants may also not be in a position to pay up should they lose the appeal.
This court has the duty to balance the right of the applicants to an appeal and the right of the respondent to enjoy the fruits of his regular judgment.
Hence, I allow the application for stay pending appeal on the following conditions: that within 30 days from 5th May 2025:
1. The sum of Ksh 700,000 be released to the respondent
2. Security for the performance of the decree, the sum of Ksh 1 million be deposited in a joint interest earning account in the names of both counsel, or in court.
3. The applicants to file and serve the Record of Appeal upon the Respondent
4. In default of the above, the stay will automatically lapse, the respondent will be at liberty to execute, the application will be deemed to be dismissed with costs to the respondent.
Orders accordingly
Dated, signed and delivered vis CTS this 5th day of May 2025
Mumbua T Matheka
Judge
Chrispol Court Assistant
Kithii for Mutheke for Applicant
Naswa for Respondent