Civil Appeal E40 of 2021

Case Metadata
Case Number:	Civil Appeal E40 of 2021
Parties:	Anwarali & Brothers Limited v Kamau & another
Date Delivered:	18 Nov 2022
Case Class:
Court:	High Court at Machakos
Case Action:	Ruling
Judge(s):	George Vincent Odunga
Citation:	Anwarali & Brothers Limited v Kamau & another (Civil Appeal E40 of 2021) [2022] KEHC 15444 (KLR) (18 November 2022) (Ruling)
Court Division:	Civil
County:	Machakos
Disclaimer:	The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

Anwarali & Brothers Limited v Kamau & another (Civil Appeal E40 of 2021) [2022] KEHC 15444 (KLR) (18 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15444 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal E40 of 2021

GV Odunga, J

November 18, 2022

Between

Anwarali & Brothers Limited

Applicant

and

Joseph Mutura Kamau

1^st Respondent

Mombasa Coastline

2^nd Respondent

Ruling

1.By a Notice of Motion application dated 30^th of March 2022 expressed to be brought under Article 159(2)(d) of the Constitution of Kenya, Sections 1A, 3A and 79 G of the Civil Procedure Act, Order 22 Rule 22, Order 42 Rules 4, and 6, Order 51 Rule 1 and 3 of the Civil Procedure Rules, 2010, the applicant seeks the following orders, THAT;a.Spentb.Spentc.This Honourable court be pleased to order stay of execution of judgement and decree passed on 11^th March 2021 by Hon. B.J Bartoo (Senior Resident Magistrate) in Machakos CMCC No. 303 of 2019 Joseph Mutura Kamau v Mombasa Coastline & Anwarali & Brothers Limited pending the hearing and determination of this Appeald.This Honourable court be pleased to order stay of execution of judgement and decree passed on 11^th March 2021 by Hon. B.J Bartoo (Senior Resident Magistrate) in Machakos CMCC No. 303 of 2019 Joseph Mutura Kamau v Mombasa Coastline & Anwarali & Brothers Limited pending the hearing and determination of civil Appeal Machakos HCCA No E037 of 2022, Anwarali & Brothers Limited v Joseph Mutura Kamau & Mombasa Coastlinee.The Honourable court be pleased to allow the Appellant/ Applicant to deposit the entire decretal sum in a joint interest earning account in the names of the Appellants and the 1^st Respondents advocates or to court as security for the due performance of the decretal amount pending hearing and determination of this Appealf.In the alternative, the Honourable court be pleased to allow the Appellant/ Applicant to deposit a bank guarantee as security for the due performance of the decretal amount in Machakos CMCC NO. 303 OF 2019 pending hearing and determination of this Appealg.This Honourable court be pleased to grant any other orders and/ or relief befitting the circumstances.h.Costs of the Application be provided for.

2.The same was supported by the affidavit of Christopher Mukhovi, the legal officer of Fidelity Shield Company Limited, the insurers of the subject motor vehicle, KAE 154H-ZB 7035 in which he deposed that judgment was entered against the Defendant’s jointly for Kshs 4,729,205 plus interest and costs and being dissatisfied with the judgement, have filed the instant appeal. He contended that he filed an application dated 16^th April 2021 in the trial court seeking inter alia stay of execution pending hearing and determination of the appeal and the court delivered its ruling on 3^rd of March 2022 directing him to pay Kshs 2,364,603 to the 1^st Respondent. He contends that the appeal that is mostly on liability, if successful, the award would be less than half of the decretal sum.

3.He indicated that he has also preferred an Appeal against the ruling being Machakos HCCA No E037 of 2022, - Anwarali & Brothers Limited v Joseph Mutura Kamau & Mombasa Coastline and there is no stay of execution. He opined that both appeals have high changes of success and would be rendered nugatory if execution was to proceed. He indicated that he is willing to deposit the entire decretal sum in a joint interest earning account in the names of both advocates or in the alternative deposit a bank guarantee as security for due performance of the decretal amount pending hearing and determination of the appeal.

4.He also contended that the 1^st Respondent has to date failed to demonstrate his ability to reimburse the decretal sum in the likely event that the appeal eventually succeeds.

5.In opposition of the Application, the 1^st Respondent filed a replying affidavit on 8^th April 2022 by Joseph Mutura Kamau in which he contends that the Application offends the provisions of the law under which it has been brought and is irretrievably defective and must fail. He stated that the Applicant is forum shopping having filed a similar application dated 16^th April 2021 in which the court delivered ruling on 2^nd March 2022 wherein the Applicant was ordered to release half of the decretal sum to his advocates on record and the other half be deposited in a joint interest earning account in the name of both advocates. He disclosed that the Applicant has failed to comply with the said orders and waited for the 30 days stay of execution to lapse then rushed to this court with unclean hands to shop for more interim orders.

6.In his view, if they were dissatisfied with the ruling delivered on 3^rd of March 2022, the applicant ought to have sought leave to Appeal the said ruling. He contended that the issue of whether he is a man of straw was determined by the trial court ruling and therefore the same is res judicata. He disclosed that he is a businessman and a man of means and capable of refunding the said amount on notice. In his view, bank guarantees and insurance bonds are not proper securities as insurance firm and banks have gone under liquidation and collapsed leaving innocent unsuspecting public without their hard-earned savings and the Applicants should not provide the same as security.

7.The Applicant filed a supplementary affidavit on 8^th June 2022 in which it was averred that that this court has the jurisdiction to hear and determine the application. According to the deponent, the decretal sum is substantial yet the 1^st Respondent has not tendered any evidence whether oral or documentary to substantiate his assertion of being a man of means or his ability to reinstate the sums so ordered by the trial court should the appeal succeed. He deposed that this issue was not determined by the trial court and so the defence of Res Judicata does not apply. He maintained that he is only seeking to balance the interest of justice and proposes to deposit the entire decretal sum in court as security for the due performance of the decree and comply with the orders of the court.

8.The Application was disposed of by way of written submissions.

Appellant’s Submissions

9.The Applicant filed submissions on 8^th of June 2022 and in addition to reiterating the averments in the affidavits on record relied on Order 42 Rule 6 and the case of Magnate Ventures v Simon Mutua & Another [2018] eKLR and submitted that the 1^st Respondent had not provided any evidence to show that he is a person of means and able to refund such huge amounts yet the onus to prove this is on him. Further reliance was placed on the case of Firoze Nurale Hirji vs Housing Finance Company of Kenya Limited and Watts Enterprises Limited [2012] eKLR and it was submitted that it would be unfair to let the 1^st Respondent enjoy fruits of a judgement appealed against simply because the appellant can afford it without determining the issues raised in the appeal.

10.On the issue of security, the Applicant relied on the case of Mpaka Road Development Limited vs. Bharat Rach & Another [2005] eKLR, and asserted that the security proposed is a sign of good faith that their insurer is ready and willing to commit to giving security in due performance of the decree. It was submitted that the application was made within time and that it was not brought in bad faith.

1st Respondent’s Submissions

11.The Respondent filed submissions on 8^th of July 2022 in which counsel reiterated the contents of their Replying affidavit and further submitted that the Applicant was forum shopping for orders in order to comply with the orders they deem fit to comply with.

12.It was submitted that the application had been brought over a year judgement having been delivered on 14^th of March 2021 with no explanation for the delay. The Respondent also contended that the Application offends Order 22 Rule 22 and Order 42 Rule 4 and 6 of the Civil Procedure Rules as the Applicant has not offered tangible security and has failed to comply with the orders of the court. It was disclosed that at the lower court, the Applicant submitted that the Respondent was entitled to Kshs 2,299,205 as judgment for his injuries therefore that amount was not unreasonable.

13.On security of costs, it was submitted that the applicant had not offered proper security and that he had filed similar application at the Trial court and had failed to comply with those orders. On substantial loss, it was submitted that the Respondent is capable of refunding the decretal sum which is why the Trial court was persuaded and held that half of the decretal costs be awarded to him. Reliance was placed on the case of Paul Nderitu Mwangi & Another v Jacinter Mutisya & Another (suing as the legal representatives of the estate of William Mbithi Musonzo (deceased) [2018] eKLR, Benson Mwangi Kilonxo v EWW [2022] eKLR and Bemuta Agencies Limited vJatomy Enterprises Limited & Another [2020] eKLR.

Determination

14.I have considered the Application, the Affidavits thereto and the submissions of the parties.

15.The first issue for determination is whether this application is res judicata. The Respondent contends that there was a similar application before the trial court in which a conditional stay was granted but was never complied with. That that is the position is not contested. The issue is the effect of that position on the instant application.

16.The Principles for the grant of the orders of stay are provided for under Order 42 rule 6(2) of the Civil Procedure Rules which provides as follows: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.

17.In Stanley Karanja Wainaina & Another v Ridon Anyangu Mutubwa [2016] eKLR, it was held that:“Counsel for the Respondent submitted on the provision of Order 42 Rule 6 (1) of the Civil Procedure Rules and argued that the Appellants had been granted a stay of execution by the trial court and in bringing the present application it was an abuse of the court process. In my view, Order 42 Rule 6(1) allows a party to file another application for stay of execution in the High Court whether the application for such stay shall have been granted or refused by the court appealed from. I appreciate the argument by the learned counsel and this court shares the same sentiment in that once an application has been dealt with by a court of competent jurisdiction and between the same parties, a similar application cannot be filed before another court as that would be an abuse of the court process or at best, res judicata. Unfortunately, that legal provision is part of our laws and until the same has been amended, we have no choice but to live with it as it is.”

18.Similarly, in Patrick Kalava Kulamba & Another v Philip Kamosu and Roda Ndanu Philip (Suing as the Legal Representative of the Estate of Jackline Ndinda Philip (Deceased) [2016] eKLR it was held by Meoli, J that:“

12.For the purposes of this case, the operational words are as underlined above. Thus, whether an application for stay pending appeal has been allowed or rejected in the lower court, the High Court “shall be at liberty…to consider” an application for stay made to it and to make any order it deems fit. The High Court in that capacity exercises what can be termed “original jurisdiction”. And from my reading of the rule, the jurisdiction is not dependent on whether or not a similar application had been made in the lower court, or the fate thereof…17. So long as an appeal from the substantive decision of the lower court has been lodged, an application under Order 42 Rule 6 (1) of the Civil Procedure Rules can be entertained afresh in the High Court. I believe that was part of the distinction that the Court of Appeal was making in the Githunguri Case concerning the court’s original jurisdiction, vis-à-vis the appellate jurisdiction and the innovation behind Rule 5 (2) b (as it is now). The foregoing has a bearing on the interpretation of Order 42 Rule 6 (6) of the Civil Procedure Rules and in particular the highlighted phrased therein.18.Similarly, the jurisdiction of the High Court in this case was invoked when the substantive appeal (itself a fresh pleading separate from the suit in the lower court) was filed. It is true that the application for stay of execution was allowed with conditions in the lower court. The wording in Order 42 Rule 6 (1) however does not preclude the Applicant from approaching this court as it has done.19. I would venture to add that the wording of Order 42 Rule 6 (1) of the Civil Procedure Rules effectively grants the same jurisdiction to this court as an appellate court as Rule 5 (2) (b) does to the Court of Appeal: to entertain an application for stay whether or not the same has already been heard by the lower court and dismissed. The only salient difference is that in the case of the High Court the rule makes it clear that it matters not whether the earlier application for stay in the lower court has been allowed or rejected in the lower court. That is my reading of Order 42 Rule 6 (1).20. It suffices, in my opinion, in this case, in view of the nature of the application before me, that there is an existing substantive appeal against the judgment of the lower court. To insist in this case that the Applicant must first file a separate appeal on the ruling of the lower court, apart from the judgment would in my view not only lead to confusing duplication of proceedings in respect of the same matter but also cause delay. The provisions however must be applied under the guiding principles of Article 15 9 (2) d) of the Constitution.21. In the circumstances of this case, I consider that driving the Applicant from the seat of justice when there exists a substantive appeal, and in disregard of the full import of Order 42 Rule (6) (1) would amount to raising a technicality, namely, the filing of an appeal on a supplemental matter that actually touches on the appeal where a substantive appeal already exists, above purpose and substance. There may arise in certain cases allegations of abuse of procedure but that must be established.”

19.In arriving at its decision the Court relied on Equity Bank Limited v West Link Mbo Limited [2013] eKLR, where it was held by Githinji, JA that:“(13)It is trite law that in dealing with (Rule 5 (2) (b) applications the court exercise discretion as a court of first instance and even where a similar application has been made in the High Court or other similar court under Rule 6 (1) of Order 42 of the Civil Procedure Rules and refused, the court in dealing with a fresh application still exercises original independent discretion as opposed to appellate jurisdiction (Githunguri v Jimba Credit Corporation Ltd. (No. 2) [1988] KLR 838.”

20.In his judgment Musinga, JA observed on the same question that:“The court is said to be exercising special independent original jurisdiction because on considering whether to grant or refuse an application for stay, it is not hearing an appeal from the High Court decision. It can grant orders of stay, irrespective of whether or not such an application had been made in the High Court. (See Stanley Munga Githunguri v Jimba Credit Corporation Ltd (Supra).”

21.Kiage, JA in his judgment quoted a passage from the judgment of the Court of Appeal in Gurbux Singh Suiri & Anor v Royal Credit Ltd. Civil Application NAI 281 of 1995 expounding the court’s reflection in its dictum in the Githunguri case as follows:-“In ordinary circumstances the court has only appellate jurisdiction and in the absence of Rule 5 (2) (b) a party who has been refused a stay of execution or an injunction by the High Court would have been obliged to apply to the Court of Appeal to set aside the refusal and then, having done so, to grant the stay or injunction…But because of the existence of Rule 5 2 (b) one does not have to apply to the court to first set aside the refusal by the High Court and then having set aside the High Court order, to grant one itself. That is clearly the sense in which the expression ‘independent original jurisdiction’ is to be understood and that was made abundantly clear in the Githunguri case, supra, by use of the expressions such as “we have to apply our minds de novo or it is not an appeal from the learned Judge’s discretion to ours.”

22.It is therefore clear that under the said provision, whether the application for stay was granted or refused by the trial court, this court is at liberty to consider such application and to make such order thereon as it deems just. Where an order of stay is granted but any person feels aggrieved by the conditions under which the application was granted, he is not barred from invoking this Court’s original jurisdiction and seeking similar orders or having the orders made by the trial Court set aside.

23.In this case however, if I understand the parties correctly, the applicant has lodged an appeal against the order granting conditional stay. That action must be frowned upon by the Court. In this matter however, I cannot deal with that appeal and I cannot grant stay of execution pending an appeal other than the one the subject matter before me. Accordingly, prayer 4 herein is misconceived and cannot be granted.

24.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 no longer 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.

25.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.

26.The same position was adopted by Kimaru, J in Century Oil Trading Company Ltd v Kenya Shell Limited Nairobi (Milimani) HCMCA No. 1561 of 2007 where he stated that:“The word “substantial” cannot mean the ordinary loss to which every judgement debtor is necessarily subjected when he loses his case and is deprived of his property in consequence. That is an element which must occur in every case and since the Code expressly prohibits stay of execution as an ordinary rule it is clear the words “substantial loss” must mean something in addition to all different from that…Where execution of a money decree is sought to be stayed, in considering whether the applicant will suffer substantial loss, the financial position of the applicant and that of the respondent becomes an issue. The court cannot shut its eyes where it appears the possibility is doubtful of the respondent refunding the decretal sum in the event that the applicant is successful in his appeal. The court has to balance the interest of the applicant who is seeking to preserve the status quo pending the hearing of the appeal so that his appeal is not rendered nugatory and the interest of the respondent who is seeking to enjoy the fruits of his judgement.”.

27.Substantial loss that was discussed in the case of Jason Ngumba Kagu & 2 Others v Intra Africa Assurance Co. Limited [2014] eKLR where it was held that:“The possibility that substantial loss will occur if an order of stay of execution is not granted is the cornerstone of the jurisdiction of court in granting stay of execution pending appeal under Order 42 rule 6 of the Civil Procedure Rules. The Court arrives at a decision that substantial loss is likely to occur if stay is not made by performing a delicate balancing act between the right of the Respondent to the fruits of his judgment and the right of the Applicant on the prospects of his appeal. Even though many say that the test in the High court is not that of ‘’the appeal will be rendered nugatory’’, the prospects of the Appellant to his appeal invariably entails that his appeal should not be rendered nugatory. The substantial loss, therefore, will occur if there is a possibility the appeal will be rendered nugatory. Here, it is not really a question of measuring the prospects of the appeal itself, but rather, whether by asking the Applicant to do what the judgment requires, he will become a pious explorer in the judicial process.”

28.This was the position of Warsame, J (as he then was) in Samvir Trustee Limited v Guardian Bank Limited Nairobi (Milimani) HCCC 795 of 1997 where he expressed himself as hereunder:“Every party aggrieved with a decision of the High Court has a natural and undoubted right to seek the intervention of the Court of Appeal and the Court should not put unnecessary hindrance to the enjoyment and exercise of that right by the defendant. A stay would be overwhelming hindrance to the exercise of the discretionary powers of the court…The Court in considering whether to grant or refuse an application for stay is empowered to see whether there exist any special circumstances which can sway the discretion of the court in a particular manner. But the yardstick is for the court to balance or weigh the scales of justice by ensuring that an appeal is not rendered nugatory while at the same time ensuring that a successful party is not impeded from the enjoyment of the fruits of his judgement. It is a fundamental factor to bear in mind that, a successful party is prima facie entitled to the fruits of his judgement; hence the consequence of a judgement is that it has defined the rights of a party with definitive conclusion. The respondent is asserting that matured right against the applicant/defendant…For the applicant to obtain a stay of execution, it must satisfy the court that substantial loss would result if no stay is granted. It is not enough to merely put forward mere assertions of substantial loss, there must be empirical or documentary evidence to support such contention. It means the court will not consider assertions of substantial loss on the face value but the court in exercising its discretion would be guided by adequate and proper evidence of substantial loss…Whereas there is no doubt that the defendant is a bank, allegedly with substantial assets, the court is entitled to weigh the present and future circumstances which can destroy the substratum of the litigation…At the stage of the application for stay of execution pending appeal the court must ensure that parties fight it out on a level playing ground and on equal footing in an attempt to safeguard the rights and interests of both sides. The overriding objective of the court is to ensure the execution of one party’s right should not defeat or derogate the right of the other. The Court is therefore empowered to carry out a balancing exercise to ensure justice and fairness thrive within the corridors of the court. Justice requires the court to give an order of stay with certain conditions.”

29.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:“It is usually a good rule to see if Order XLI Rule 4 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss in its various forms, is the corner stone of both jurisdictions for granting a stay. That is what has to be prevented. Therefore without this evidence it is difficult to see why the respondents should be kept out of their money.”

30.On the part of Gachuhi, Ag.JA (as he then was) at 417 held:“It is not sufficient by merely stating that the sum of Shs 20,380.00 is a lot of money and the applicant would suffer loss if the money is paid. What sort of loss would this be? In an application of this nature, the applicant should show the damages it would suffer if the order for stay is not granted. By granting a stay would mean that status quo should remain as it were before judgement. What assurance can there be of appeal succeeding? On the other hand, granting the stay would be denying a successful litigant of the fruits of his judgement.”

31.Dealing with the contention that there was no evidence that the 1^st 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:“I therefore think in the circumstances that these comments were unfortunate. Nevertheless, having considered the matter to the full, and with anxious care, there is in my judgement no justification whatsoever for holding that there is a likelihood that the respondents will not repay the decretal sum if the appeal is successful and that the appeal will thereby be rendered nugatory. The first respondent is a man of substance, with a good position and prospects. It is true his house was, in his words, reduced to ashes, but I do not take that against him. Both seem to me to be respectable people and there is no evidence that either will cease to be so, in particular that the first respondent will not remain in his job until pensionable age.”

32.Therefore, the mere fact that the decree holder is not a man of means does not necessarily justify him being barred 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 vs. East African Standard (No 2) [2002] KLR 63 it was held that:“to be obsessed with the protection of an appellant or intending appellant in total disregard or flitting mention of the so far successful opposite party is to flirt with one party as crocodile tears are shed for the other, contrary to sound principle for the exercise of a judicial discretion. The ordinary principle is that a successful party is entitled to the fruits of his judgement or of any decision of the court giving him success at any stage. That is trite knowledge and is one of the fundamental procedural values which is acknowledged and normally must be put into effect by the way applications for stay of further proceedings or execution, pending appeal are handled. In the application of that ordinary principle, the court must have its sight firmly fixed on upholding the overriding objective of the rules of procedure for handling civil cases in courts, which is to do justice in accordance with the law and to prevent abuse of the process of the court.”

33.Where the allegation is that the respondent will not be able to refund the decretal sum if paid to him in satisfaction of the decree, the burden is upon the applicant to prove that that is the position. See Caneland Ltd. & 2 Others v Delphis Bank Ltd. Civil Application No. Nai. 344 of 1999.

34.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 since lack of means per se is not necessarily a ground for granting stay. 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. Suffice to state that the respondent, at this moment, is the successful party and in order to deny him the fruits of his success, it is upon the applicant to prove that he is unlikely to make good whatever sum he may have received in the meantime.

35.In this application however, the Applicant’s basis for urging the Court to find that the application raises substantial loss is that the applicant has failed to demonstrate his ability to reimburse the decretal sum in the event that the appeal succeeds. I agree with the position adopted in Bungoma High Court Misc Application No 42 of 2011 - James Wangalwa & Another v Agnes Naliaka Cheseto that:“The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal. This is what substantial loss would entail.’’

36.That the Respondents intend to proceed with execution is not reason enough to grant stay since being the successful litigant, he is lawfully entitled to enjoy the fruits of his judgement. Therefore, in proceeding with the execution process the Respondents are simply exercising a right which has been bestowed upon them by the law and such an exercise cannot be stayed unless good reasons are given by the Applicant.

37.In this case, the 1^st Respondent has deposed that he is a businessman. He is not required to table his statement of accounts to prove his income. What he is required to prove is that that he is not a dishonourable miscreant without any form of income. The burden rests on the shoulders of the applicant to disprove his averment which in this case the applicant has failed to do.

38.In the premises I find no merit in this application which I hereby dismiss with costs to the 1^st Respondent.

39.It is so ordered.

G V ODUNGAJUDGERULING READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 18^TH DAY OF OCTOBER, 2022M W MUIGAIJUDGEDelivered the presence of:

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