Notice of Motion Dated 14th September, 2022
1.The Applicant vide a Notice of Motion dated 14th September, 2022 brought pursuant to Section 3A,79G of the Civil Procedure Act Cap 21 Laws of Kenya, Order 51 Rule 1 and 3 of the Civil Procedure Rules sought Orders: -1)(Spent)2)That the Hon. Court be pleased to stay execution of the judgment of trial court dated 16/8/2022 pending hearing and determination of this application.3)That the Hon. Court be pleased to stay execution of the judgment delivered by the trial court in Kangundo on 16/8/2022 pending hearing and determination of the intended appeal.4)That the Application heard inter parties on such date and time as this honorable court may direct.5)That the cost of this application be provided for and the same do await the outcome of the appeal.
2.The Application is supported by the annexed Affidavit Philip Musembi Nzaku and on the following other grounds.a.That judgment herein was delivered on 16th August, 2022 and the respondent was awarded liability 100% General Damages of Kshs 540,000, Special Damages of Kshs 23,000, costs and interest.b.That the appellant/applicant being aggrieved and dissatisfied with the said judgment on both quantum and liability has preferred to appeal against the same.c.That the lower court Magistrate did not consider the defendant’s evidence on quantum and liability and sited authorities with similar injuries.d.That the appellant’s/applicant’s appeal has high chances of success.e.That the application has been presented without delay.f.That the respondent herein is a person of unknown means hence the applicant/appellant is apprehensive that if the decretal some is paid out, the appeal will be rendered an academic exercise.g.That the applicant/appellant has strong arguable appeal which has high chances of success.h.That the application is made in good faith and the respondent will not suffer any prejudice /damage that cannot be compensated by way of costs if this application is allowed.i.That the lower court granted stay of days from 16/8/2022 which stay expires on 16/9/2022 and so unless a stay of execution is granted as prayed, the applicant’s application for stay pending the hearing and determination of the intended appeal will be rendered Nugatory and the applicant/appellant will suffer irreparable loss and damage as respondent may commence execution proceedings against him.j.That the applicant is ready and willing and able to furnish such reasonable security for the entire decretal amount pending the hearing and determination of this application and the intended appeal.
3.The Appellant/Applicant swore an affidavit and deposed that;– judgment was delivered on 16/8/2022 in the terms liability 100%, General Damages, Kshs 540,000, Special Damages Kshs 23,000 costs and interest; that the application has been presented without inordinate delay and he is willing to give security for the entire judgment award pending hearing and determination of this application and the intended appeal.
4.That the Respondent is one of unknown means hence he is apprehensive that if the decretal sum is paid out the appeal will be rendered an academic exercise since the respondent will not be in a position to refund the amount; that the appeal raises pertinent issues with high chances of success; that the lower Court granted stay from 16/8/2022 which stay expires on 16/9/2022 and so unless he is granted stay of execution as prayed he stands to suffer irreparable loss and damage as the respondent may commence execution proceedings against him; that unless this application is heard and stay granted as prayed the respondent will proceed to execute against him thus rendering this application and the appeal nugatory and greatly prejudicial to him; that he prays the orders sought in the application be granted as prayed.
Replying Affidavit Dated 4th October, 2022
5.The Respondent herein filed a Replying Affidavit stating as follows:- that the said application is opposed, unmeritorious, an abuse of Court process and should be dismissed by court suo moto; that the Respondent filed the suit against the Appellant/Applicant on 2/12/2021 for damages arising out of assault by the Appellant/ Applicant; that the issue of liability was held at 100% as against the Appellant/ Applicant by the trial Court as the appellant was not only convicted in a criminal matter being Kangundo Criminal Case No. 890/18 for assaulting her and fined but the Appellant/ Applicant never called any witness to rebut his evidence on the same and her evidence at the Trial Court remains uncontroverted; that appeal by the appellant does not touch the issue of liability as his evidence before the trial Court was uncontroverted.
6.That Order 42 Rule 6 (2) of the Civil Procedure Rule, 2010 provides that no order for stay of execution shall be made unless such security as the court orders for the due performance of such decree or order as may ultimately be binding on the applicant has been given by the Appellant/ Applicant; That she stands prejudiced if the application is allowed because as correctly observed by the Trial Court and confirmed by both her doctor on record who examined her that she still needs further medical treatment due to the horrific injuries sustained in the assault by the applicant herein.
7.That as it stands the Respondent is and entitled to the fruits of the judgment as pronounced by the Trial Court; that Appellant/ Applicant have only filed this application in order to deny the Respondent the fruits of judgment as entered against the Appellant/ Applicant by the Trial Court; that litigation must come to an end as is this present case and the application has not raised any ground that could lead to the same being heard and determined; that this Court is to order in security, at least ¾ of the decree to be paid to the Respondent as she still goes to the hospital for checkup due to the injuries sustained in the assault.
8.If the Court allows the application, then the applicant be compelled to release the sums as quoted above and the rest to be deposited in an interest earning account in the names of her advocate and the appellant/applicant’s advocate on record; that the averments that she is a person of no means that she will not be able to refund the said sum if the appeal is successful is meant to mislead the Court as the Appellant/Applicant is her cousin and knows she is in a position to refund the said sum.
Appellant/applicant’s Written Submissions
9.The Appellant/ Applicant on their submission dated 14/11/2022, raised the following issues.A.Whether the appellant may suffer substantial loss unless a stay order is made?b.Whether the appellant should be given more time to give or provide sufficient security for the due performance of the decree.
10.On the issue of whether the Appellant may suffer substantial loss unless a stay order is made, reliance was made in the case of Vishram Ravji Halai vs Thornton & Turpin Civil Application No. Nai. 15 of 1990(1990) KLR 365, the Court of Appeal held that;
11.The Appellant submitted that Oder 42 Rule 6 Civil Procedure Rules, 2010 sets the legal threshold to be met by the Applicant and further submitted that the substantial loss to the applicant is a subjective test that is to be determined on the basis of the facts of a particular case.
12.It is submitted that the appellant in his supporting affidavit averred that the respondent is a person of unknown means hence the appellant/applicant is apprehensive that if the decretal sum is paid out the appeal will be rendered academic exercise and the respondent may not be able to pay back the said sum upon the success of the appeal.
13.That the judgment delivered on 16/8/2022 by the lower Court was in respect of a money decree of Kshs 563,000/- which is a substantial sum in sense, it would be futile to seek its recovery after success of the appeal. Reliance was made in the case of James Wangwala & Another vs Agnes Naliaka Cheseto (2012) eKLR in which it was held that:
14.Further, it is submitted that the Court of Appeal reinforced the centrality of substantial loss in the case of Mukuma VS Abuoga where it was stated that;-
15.That the refusal to grant stay would occasion substantial loss to the appellant and also render the appeal nugatory in the event the respondent fail to pay the decretal sum awarded. That the refusal of this application would act to impugn the right to Appeal and therefore the Constitutional right to access justice under Article 48 of the Constitution of Kenya. Reliance was in the case of James Wangwala & Another vs Naliaka Cheseto (2012) eKLR, which stated that
16.On the issue whether the appellant should be given more time to give or provide sufficient security for the due performance of the decree, it is submitted that the law enshrine overriding objective of this Honorable Court in Section 1A of the Civil Procedure Act; Cap 21 ... this court is enjoined to effectuate the just, expeditious, proportionate and affordable resolution of the civil disputes that comes before it for determination.
17.The Appellant is willing to abide by the security terms of this Court and is pleading to be granted a maximum time period of 60 days to avail or bring forth the security. This is a sign of good faith the applicant is ready and willing to commit to giving security urging the court not to close its eye on it.
18.Reliance made in the case of Agro Chemical Sacco society Ltd vs Vincent Wasonga Wandey (2010) eKLR quoted Sir Johnson Donaldson in the case of Rosengrens vs Safe Deposit Centres Ltd (1984) ALLER 198 and stated.
19.Also see the case of Nduhiu Gitahi & Another vs Annah Wambui Warugongo Civil Appl. No. 3 of 1998, made the following remarks:
20.It is finally submitted that the appellant/applicant’s application for stay be granted for satisfying the requirements under Order 42 Rule 6 of the Civil Procedure Rules, 2010 and be allowed 60 days to avail and or give security required.
Respondents Written Submisions
21.On behalf of the Respondents submissions dated 11/11/2022, reliance is made in the case of Butt vs Rent Restriction Tribunal (1982) KLR 417, the court of appeal considered the provisions of Order 41 Rule (4) (2) (now Order 42 Rule 6 (2) and held-a.The power of the court to grant or refuse an application for a stay of execution is a discretionary power.b.The Court in exercising its discretion whether to grant [or] refuse an application for stay will consider the special circumstances of the case and unique requirements. The special circumstances in this case were that there was a large amount of rent in dispute and the appellant had an undoubted right of appeal.c.The Court in exercising its powers under Order 41 rule 4(2) (b) (now Order 42 (6) of the Civil Procedure Rules, can only order security upon application by either party or on its own motion. Failure to put security for costs as ordered will cause the order for stay of execution to lapse.”
22.It is submitted that the applicant must show that it will suffer irreparable damage if the application is not granted. In the case of Nguruman Limited v Jan Bonde Nielsen & 2 others, CA No. 77 of 2012 the Court of Appeal stated as follows on irreparable injury or damage:
23.That the cardinal principle of law that he who alleges must prove is well captured in Sections 107 to 109 of the Evidence Act which reads as follows:Section 112 of the Evidence Act further provides that
24.The Respondent submitted that the applicant has not demonstrated any prove that the applicant will suffer any irreparable damage if ordered to pay the decretal sum to the respondent.
25.Reliance is made in the case of Kenya Shell Limited vs Kibiru (1986) KLR 410 Platt Ag. JA (as he then was) at Page 416 said as follows
26.On the part of Gachuhi, Ag JA (as he then was) at page 417:
27.On whether the applicant has made provisions for security; it is submitted that applicant has submitted the decretal amount with the Court to show that he will pay the same if the application is unsuccessful. That failure to put security for cost means that the applicant is only seeking for a stay with no intention of fulfilling the decretal amount should the application be dismissed.Order 22 rule 22(3) of the Civil Procedure Rule, 2010 provides:-
28.See the case of Equity Bank Ltd vs Taiga Adams Company Ltd, Gianfranceo Manenthi & Another –vs- African Merchant Assurance Company ltd .
29.On whether the Respondent will suffer prejudice if this application is allowed reliance is made in the case of Machira t/a Machira & Co. Advocates East Africa Standard (No. 2) (2002) KLR 63 where the Court stated that;
30.It is finally submitted that the Respondent should be left to enjoy the fruits of the judgment and to be compensated from the acts of the applicant which led to the horrific injuries sustained by the respondent.
31.The Court considered the application, affidavits in support and in opposition to and the written submissions and find that the issue for determination is whether the Applicant is entitled to the orders sought in the said application.
32.The application is premised on Order 42 Rules 6 of the Civil Procedure Rules, 2010 and stipulates as follows:(2)No order for stay of execution shall be made under sub rule (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.
33.The Applicant deposed that he is apprehensive 1st Respondent as a Decree Holder may proceed and levy execution against him that the same may render the Appeal nugatory and cause him to suffer irreparable loss and damage since the respondent has not furnished the court with any evidence as to her financial standing.
34.In Michael Kamau Kurumah and 2 Others vs Agness Mwikali Malonza HCC 181 OF 2021 that:
35.In Vishram Ravji Halai vs. Thornton & Turpin Civil Application No. Nai. 15 of 1990  KLR 365,
36.In the foregoing, I find that both parties have shown what substantial loss they will suffer; the Appellant as it will render the appeal nugatory as the intended appeal includes challenge to both liability and quantum and the Respondent after suffering injuries arising out of a road traffic accident and obtained judgment she cannot enjoy fruits of the judgment. The stay of execution order is justified in the circumstances.
37.On the ground of time, filing of the appeal without undue delay Judgment in Kangundo CMCC No 81 of 2022 was delivered on 16/8/2022 and the current application for stay of execution pending appeal was filed on 15th September 2022. I therefore find that the application/appeal was filed within reasonable time.
38.As to the issue of whether there is an arguable appeal, the Court of Appeal in Safaricom ltd vs Ocean View Beach Hotel Ltd &2 Others (2010) eKLR stated that:
39.This Court perused Memorandum of Appeal and without going into the merits thereof, I find that the Appeal raises arguable issues that will be determined by the Appellate court.
40.With regard to the issue of deposit of security, it is a statutory mandate for obtaining stay of execution pending appeal. The Applicant made an offer to provide adequate security pending appeal being heard and determined.This Court in Focin Motorcycle co. vs Ann Wambui Wangui & another Civil Appeal No 22 of 2017, observed that:
41.The Court, in In Arun C Sharma -V- Ashana Raikundalia T/A Rairundalia & Co. Advocates the Court held;
42.In the end, the Court issues the following orders;a.There be a stay of execution pending hearing and determination of this Appeal.b.The Appellants will provide security by deposit of ½ decretal sum in a joint earning interest account in the name of the advocates for the respective parties on record within Ninety (90) days from the date of this Ruling.c.In default of (b) the appeal shall stand dismissedd.By virtue of Memorandum of Appeal the appeal is deemed as filed.e.The Lower Court file be obtained through Deputy Registrar Machakos High Court.f.Record of Appeal availed filed and served by Appellant.g.Costs shall abide in the appeal.It so ordered.