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Onyancha v Kaesa & another (suing as the administrator of the Personal Representative of the Estate of John Mutisya Kaesa) (Civil Appeal 20 of 2020) [2022] KEHC 3191 (KLR) (14 July 2022) (Ruling)
Neutral citation:
[2022] KEHC 3191 (KLR)
Republic of Kenya
Civil Appeal 20 of 2020
GV Odunga, J
July 14, 2022
Between
Stanley Morara Onyancha
Applicant
and
Monica Ndungwa Kaesa
1st Respondent
Wilfred Mbula Ikisangau
2nd Respondent
suing as the administrator of the Personal Representative of the Estate of John Mutisya Kaesa
Ruling
1.By the undated Motion filed on 2nd March, 2020, the applicant herein seeks an order for stay of execution pending the hearing of this appeal. The said application was supported by an affidavit sworn by Rachael Njoki, an advocate of the High Court of Kenya and the Assistant Legal Officer for Saham Assurance Company Kenya the insurers of motor vehicle Reg. No. KCD 782M belonging to the applicant herein.
2.According to the deponent, the judgement as entered against the Respondent herein on 29th January, 2020 in the sum of Kshs 1,718,776 and aggrieved by the same, particularly on liability, the advocates lodge this appeal against the said judgement. According to the deponent, this appeal has overwhelming chances of success and unless the execution of the judgement is stayed, the intended appeal will be rendered nugatory as the Respondent will proceed to execute, the stay granted in the lower court having lapsed.
3.It was deposed that the Respondent will not be in a position to refund the decretal sum once paid over to him given their situation in life and the vicissitudes, vagaries and uncertainties of life.
4.It was disclosed that the insurers of the applicant were willing to abide by any order that the court may make in order to secure the eventual decree as may eventually be found to be binding upon the applicant.
5.The replying affidavit was sworn by Evans M. Mochama, learned counsel for the Respondent in which it was deposed that the applicant had not demonstrated that the appeal has any chances of success. However, the deponent averred that should the court deem it fit to grant the stay sought, then it should do so on condition that half of the decretal sum is paid over to the Respondent’s advocates while the balance is deposited in the joint interests earning account.
Determination
6.I have considered the application, the supporting affidavit, the grounds of opposition and the submissions filed as well as the authorities relied upon.
7.The principles guiding the grant of a stay of execution pending appeal are well settled. These principles are provided under Order 42 rule 6(2) of the Civil Procedure Rules which provides as follows:
8.In Vishram Ravji Halai v Thornton & Turpin Civil Application No Nai 15 of 1990 [1990] KLR 365, the Court of Appeal held that whereas the Court of Appeal’s power to grant a stay pending appeal is unfettered, the High Court’s jurisdiction to do so under Order 41 rule 6 of the Civil Procedure Rules is fettered by three conditions namely, establishment of a sufficient cause, satisfaction of substantial loss and the furnishing of security. Further the application must be made without unreasonable delay. To the foregoing I would add that the stay may only be granted for sufficient cause and that the Court in deciding whether or not to grant the stay and that in light of the overriding objective stipulated in sections 1A and 1B of the Civil Procedure Act, the Court is nolonger limited to the foregoing provisions. The courts are now enjoined to give effect to the overriding objective in the exercise of its powers under the Civil Procedure Act or in the interpretation of any of its provisions. According to section 1A(2) of the Civil Procedure Act “the Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective” while under section 1B some of the aims of the said objective are; the just determination of the proceedings; the efficient disposal of the business of the Court; the efficient use of the available judicial and administrative resources; and the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties.
9.It therefore follows that all the pre-Overriding Objective decisions must now be looked at in the light of the said provisions. This does not necessarily imply that all precedents are ignored but that the same must be interpreted in a manner that gives effect to the said objective. What is expected of the Court is to ensure that the aims and intendment of the overriding objective as stipulated in section 1A as read with section 1B of the Civil Procedure Act are attained. It is therefore important that the Court takes into consideration the likely effect of granting the stay on the proceedings in question. In other words, the Court ought to weigh the likely consequences of granting the stay or not doing so and lean towards a determination which is unlikely to lead to an undesirable or absurd outcome. What the Court ought to do when confronted with such circumstances is to consider the twin overriding principles of proportionality and equality of arms which are aimed at placing the parties before the Court on equal footing and see where the scales of justice lie considering the fact that it is the business of the court, so far as possible, to secure that any transitional motions before the Court do not render nugatory the ultimate end of justice. The Court, in exercising its discretion, should therefore always opt for the lower rather than the higher risk of injustice. See Suleiman vs. Amboseli Resort Limited [2004] 2 KLR 589. This was the position of Warsame, J (as he then was) in Samvir Trustee Limited vs. Guardian Bank Limited Nairobi (Milimani) HCCC 795 of 1997 where he expressed himself as hereunder:
10.On the first principle, Platt, Ag.JA (as he then was) in Kenya Shell Limited v Kibiru [1986] KLR 410, at page 416 expressed himself as follows:
11.On the part of Gachuhi, Ag.JA (as he then was) at 417 held:
12.Dealing with the contention that there was no evidence that the 1st Respondent would be able to refund the decretal sum if paid over to the Respondent, Hancox, JA (as he then was) in the above cited case when he expressed himself as follows:
13.Therefore, the mere fact that the decree holder is not a man of means does not necessarily justify him from benefiting from the fruits of his judgement. On the other hand, the general rule is that the Court ought not to deny a successful litigant of the fruits of his judgement save in exceptional circumstances where to decline to do so may well amount to stifling the right of the unsuccessful party to challenge the decision in the higher Court. In Machira T/A Machira & Co Advocates v East African Standard (No 2) [2002] KLR 63 it was held that:
14.Where the allegation is that the respondent will not be able to refund the decretal sum the burden is upon the applicant to prove that the Respondent will not be able to refund to the applicant any sums paid in satisfaction of the decree. See Caneland Ltd. & 2 others v Delphis Bank Ltd Civil Application No Nai 344 of 1999.
15.The law, however appreciates that it may not be possible for the applicant to know the respondent’s financial means. The law is therefore that all an applicant can reasonably be expected to do, is to swear, upon reasonable grounds, that the Respondent will not be in a position to refund the decretal sum if it is paid over to him and the pending appeal was to succeed but is not expected to go into the bank accounts, if any, operated by the Respondent to see if there is any money there. The property a man has is a matter so peculiarly within his knowledge that an applicant may not reasonably be expected to know them. In those circumstances, the legal burden still remains on the applicant, but the evidential burden would then, in those circumstances, where the applicant has reasonable grounds which grounds must be disclosed in the application that the Respondent will not be in a position to refund the decretal sum if the appeal succeeds, have shifted to the Respondent to show that he would be in a position to refund the decretal sum. See Kenya Posts & Telecommunications Corporation vs. Paul Gachanga Ndarua Civil Application No. Nai. 367 of 2001; ABN Amro Bank, N.K. vs. Le Monde Foods Limited Civil Application No. 15 of 2002.
16.What amounts to reasonable grounds for believing that the respondent will not be able to refund the decretal sum is a matter of fact which depends on the facts of a particular case. In my view even if it were shown that the respondent is a man of lesser means, that would not necessarily justify a stay of execution as poverty is not a ground for denial of a person’s right to enjoy the fruits of his success. Suffice to say as was held in Stephen Wanjohi v Central Glass Industries Ltd Nairobi HCCC No 6726 of 1991, financial ability of a decree holder solely is not a reason for allowing stay; it is enough that the decree holder is not a dishonourable miscreant without any form of income.
17.In this case, the applicant has not disclosed his grounds for believing that the Respondents would not be able to refund the decretal sum herein as the supporting affidavit is deposed to by an agent of the applicants’ insurers as opposed to the applicant himself. The deponent has not disclosed her source of information that the Respondents will be unable to refund the decretal sum if paid over to them. In my view it is not sufficient to simply make a bare averment that the Respondent will not be able to refund. As far as the Court is concerned the Respondent is the successful party and has a right to enjoy the fruits of his judgement unless the circumstances dictate otherwise. It is upon the party seeking to deprive the successful party from enjoying his fruits of judgement that ought to prove that those circumstances do exist. That threshold cannot be said to have been attained by mere bare allegations devoid of sources of information or grounds of belief.
18.In this case however, the decree sum is over Kshs 1 million. While the general rule is that poverty of the judgement creditor is not necessarily a ground for granting stay of execution, where the award is on the face of it high, that is a factor which this Court may take into account. With respect to the issue whether or not the applicant stands to suffer substantial loss in Job Kilach v Nation Media Group & 2 others Civil Application No. Nai. 168 of 2005 the Court of Appeal citing Oraro & Rachier Advocates v Co-operative Bank of Kenya Limited Civil Application No Nai 358 of 1999 held that where there is a decree against the applicant but the amount is colossal, it cannot be lost sight of the fact that the decretal sum is a very large sum, which by Kenyan standards very few individuals will be in a position to pay without being overly destabilized. In the said case the amount in question was Kshs. 4,000,000.00. Therefore, if the applicant were to prove that if compelled to settle the decretal sum it may well fold up hence be disabled in pursuing his otherwise merited appeal, the Court may, while also taking into account the prospects of the Respondent being able to be paid if the appeal were to fail, grant the stay sought.
19.While in this case, it is not contended that the applicant’s insurers are likely to fold up, the amount herein was awarded to an estate of the deceased. The Respondents have no file an affidavit averring that in the event that the appeal succeeds, they are in a position to refund the same since the replying affidavit was deposed to by their advocates.
20.In the premises, there will be a stay of execution pending this appeal on condition that the Applicant deposits the whole decretal sum in a joint interest earning account in Kenya Commercial Bank, Machakos, in the names of the advocates for the parties herein within 30 days from the date hereof. In default execution to proceed.
21.Since the proceedings are ready, I further direct that the record of appeal be prepared, filed and served on the Respondents within the same period. In default, the appeal to stand dismissed with costs.
22.As regards costs, although this Court directed the parties to furnish it with soft copies of the pleadings and submissions in word format, none of the parties complied therewith by the time of the drafting of this ruling. Section 1A(3) of the Civil Procedure Act provides as hereunder:
23.One of the overriding objectives of the Civil Procedure Act is the facilitation of expeditious resolution of the civil disputes governed by the Act. The direction that Advocates and parties do furnish the Court with soft copies of their pleadings and submissions is geared towards that same objective and where they fail to comply therewith, it amounts to a failure to comply with a statutory mandate which may call for a penalty in costs or deprivation of costs even where the same would have been granted. Accordingly, there will be no order as to the costs of this application.
24.It is so ordered.
READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 14TH DAY OF JULY, 2022.G V ODUNGAJUDGEDelivered in the absence of the parties.CA Susan
