1. On 28.07.2023, the court allowed the Appellant’s application dated 27.07.2023 that sought to stay the execution of the judgment emanating from MCCC No. E5833 of 2020 pending his appeal before the court on condition that the Appellant deposit security of Kshs. 2,500,000.00 within 45 days, failure to which the orders of stay shall automatically lapse (“the Ruling”). The Appellant has now approached the court through the Notice of Motion dated 08.09.2023 and seeks to substitute the required security of Kshs 2,500,000 with depositing the original Title to the property known as KJD/ILDAMAT/4969 to act as the security and/or condition for stay of the judgment and decree of the lower court. The application is supported by the grounds on its face and the Appellant’s affidavit sworn on 08.09.2023. The Respondents have opposed the application through the Grounds of Objection dated 11.12.2023.
2. The Appellant avers that due to financial constraints, he has been unable to come up with the required security of Kshs 2,500,000.00 and that he has made every effort to source for this amount but has not been successful. That the Appellant, who is in the transport industry, states that he has not been able to carry out his business, as his Motor Vehicle Registration Number KCX ***L, which he used for his business, has been in the custody of the Respondents’ agents being Chador Auctioneers since 27.03.2023, thus he has thus not been able to generate income to meet his needs and that of his family, hence exposing him to financial difficulties.
3. The Appellant avers that he has approached his mother, Rachel Wangari Maina, who is the registered proprietor of the property known as KJD/ILDAMAT/4969 situated in Kajiado County and measuring 0.20 Hectares, and who is ready and willing to deposit with this Court the original Title Deed to the aforesaid property as security. He avers that this proposal has been made in good faith and the proposal to deposit the aforesaid Title Deed as security as an alternative to Kshs. 2,500,000.00 as ordered by the Court is reasonable and fair. The Appellant proffers that the court has the discretion to vary the Ruling and allow him to deposit security in the form of Title Deed to the Property known as KJD/ILDAMAT/4969, and which will be in a manner that is least disadvantageous to the Appellant as long as the security is adequate and binding. The Appellant states that in the event the orders sought herein are not granted, there is imminent threat that the Respondents shall commence the process of execution of the Judgement and Decree of the lower court at anytime from 11.09.2023, thereby occasioning substantial loss upon the Appellant. That the Respondents will not suffer any unfair prejudice if this Court were to grant the orders sought and further, that the instant application has been brought promptly and without unreasonable delay.
4. In opposition to the application, the Respondents state that the present application defeats civil rules as the valuation of the property has not been authenticated, the title is not a bond as is practice in Criminal law and that the title is in the name of a third party and thus not visibly possible to actualize the value in the event judgment is rendered.
5. I have considered the arguments by the parties. Like the Respondents I am concerned that the Title being offered as security has not been ascertained as to its value. Without the value of the security being ascertained, the Respondents would be placed in a position in which should the appeal fail, it may be difficult for them to realize the fruits of his litigation due to the inadequacy of the security ordered. The Court of Appeal in Visram Ravji Halai & Anor. vs. Thorntorn & Tupin [1963] Ltd Civil App. No. NAI 15 of 1990 frowned upon making orders of security in such circumstances.
6. I dismiss the Appellant’s application dated 08.09.2023 with costs. The Appellant shall comply with the order of 28.07.2023 within 30 days from the date hereof in default the order of stay shall stand discharged.
DATED and DELIVERED at NAIROBI this 29th day of JANUARY 2024
D. S. MAJANJA
JUDGE