NOTICE OF MOTION
1.Vide an application dated November 5, 2022 filed under Article 159 2 (a) and (d) of the Constitution of Kenya Section 3A,79G of the Civil Procedure Act and Order 21 rule 1b, Order 22 rule 22, order 42 Rule 6, Order 50 rule 6, Order 51 Rule 1 and 3 of the Civil Procedure Rules, the Applicant sought the following orders, that;
2.The Application is supported by the Affidavit of Snow Mbula Eliuddeponed on November 5, 2022 who stated that judgment was entered on 27.10.200 and he was found to be 100% liable and is to pay Kshs 300,000 for general damages, Kshs 7150 for special damages together with costs and interest and being dissatisfied with the judgment has appealed against it.
3.The Applicant contends that the Appeal has high chances of success, that the Respondent may levy execution against them as 30 days stay of execution that was granted is on the verge of lapsing rendering the appeal nugatory causing irreparable loss and damage upon them.
4.It was deposed that the insurer, M/s Directline Assurance Company is able and willing to provide security for the entire decretal sum in the form of a bank guarantee to be issued by Family Bank which he says is a reputable bank in Kenya without any partial payments/ settlements being made.
5.That further, of there is an order for partial payment, the payments will be utilized and alienated by the Respondents and recovery of the same will be arduous in the event the intended appeal is succeeds. Lastly, it was contended that the application was filed in good faith.
6.In opposition the Application, he Respondent filed a Replying Affidavit deposed on December 8, 2022 in which it was opined that the application should be struck out as it does not fulfil the conditions under Section 3A, 79G of the Civil Procedure Act and Order 22 rule 22, order 42 Rule 6, Order 50 rule 6, Order 51 Rule 1 and 3 of the Civil Procedure Rules. Secondly, that the amount awarded by the Trial Court was not excessive and therefore the intended appeal has no chances of success and this application has been brought to deny her from enjoying the fruits of the judgment.
7.The Respondent deposed that on November 1, 2022 through her advocates wrote a letter tabulating costs upon the Appellant which they failed and/or ignored only to rush to Court with the instant application when the stay period is almost lapsing. She said the application has not been filed in good faith. She also said that she is an employee of the Police Service with assets and is well endowed financially hence in a position to refund the said sum. The decretal sum amounts to Kshs 439,718 inclusive of costs of the suit.
8.The Respondent contended that a bank guarantee is not proof of availability of funds and it lasts for a period of 1 year as such, that cannot be proper security owing to the fact that an appeal may last for more than 1 year. Further, that it must be specific to a suit. Lastly, the Respondent prayed that half the decretal sum of Kshs 219,859 be paid to her and the other half be deposited in court pending the hearing and determination of the Appeal should the court be inclined to grant the orders sought in the interest of justice.
9.The application was canvassed by way of written submissions.
Applicant’s Submissions Dated 3.01.2023
10.The Applicant submitted that in the subordinate courts, it is not a requirement to show that the Appeal has high chances of success and the Applicant only needs to show that he has an arguable appeal as stated in the case of Bake ‘N’ Bite (Nrb) Limited v Daniel Mutisya Mwalonzi  eKLR.
12.As regards whether substantial loss will occur, it was submitted that the Appellant has furnished the court with a bank guarantee while the Respondent’s means are not known as it has not disclosed nor furnished the court with any documentary evidence to prove the financial standing. That the decretal sum was a substantial sum and in the event the Respondent is unable to repay it, the Appeal will have been rendered nugatory and the Applicants exposed to irreparable damage. To buttress this point, reliance was placed on the case of Edward Kamau & Another v Hannah Mukui Gichuki & Another  eKLR, Tabro Transporters (supra).
Respondent Submissions Dated 25.01.2023
15.Secondly that the Applicant has based her submissions on the inability to recover the decretal sum which it was submitted was an assumption since the Respondent is an employee of the police service with assets and is well endowed financially hence in a position to refund the said sum.
16.As to whether the Application has been made without undue delay, it was submitted while relying on section 79 G of the Civil Procedure Act and the case of Gichohi Susana vs Philip Muchoki Ngugi & Another  e KLR, that the application is an afterthought and delay tactic meant to deny the Respondent fruits of judgment and justice delayed is justice denied.
19.The court has considered the Application, the response thereto and the submissions on record and the issue for determination is whether the Applicant should be granted an order of stay of execution pending appeal.
Order 22 rule 22(1)
20.Stay of Execution is guided by the proviso under Order 42 Rule 6 of the Civil Procedure Rules 2010 that provides as follows;
21.These principles were enunciated in Butt vs Rent Restriction Tribunal  the Court of Appeal stated what ought to be considered in determining whether to grant or refuse stay of execution pending appeal. The court said that:-a.The power of the court to grant or refuse an application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal.b.Secondly, the general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judge’s discretion.c.Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the applicant at the end of the proceedings.d.Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. The court in exercising its powers under Order XLI Rule 4(2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security of costs as ordered will cause the order for stay of execution to lapse.
23.There are three conditions to be satisfied by the Appellant. The first is whether he will suffer substantial loss if the order of stay is not granted. Kimaru, J in Century Oil Trading Company Ltd v Kenya Shell Limited Nairobi (Milimani) HCMCA No 1561 of 2007 stated that:
25.The Applicant’s submissions are that the Respondent will be unable to pay the decretal sum however the court have noted that poverty is not a ground for denying a successful litigant the fruits of judgment. In this case, the Respondent has demonstrated oath that she is capable is paying the decretal sum despite not providing any documentary evidence. In Stephen Wanjohi vs Central Glass Industries HCCA 169 OF 2017 12 Ltd Nairobi HCCC No 6726 of 1991, that financial ability of a decree holder solely is not a reason for allowing stay; it is enough that the decree holder is not a dishonorable 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.
26.The Applicant contends that stay will lapse and the Appeal will be rendered nugatory if the order is not granted. The court notes that release of the whole decretal sum would be prejudicial to the Applicant.
27.As to whether the Application has been filed without undue delay, judgment was entered on October 27, 2022 and this application was filed on November 15, 2022. The court finds that the Application has not been filed without undue delay.
29.This Court is persuaded by the submissions of the Respondent that indeed a bank guarantee is not proof of money and the one that has been presented to this court is not specific to this court. Further, that the same is for a period of 1 year. I also find that the Bank Guarantee is between the insurer and the bank, nowhere does it mention the Applicant. The same is also not fully executed. The bank guarantee presented this court is dated February 18, 2022 and 12 months have since lapsed thus it is not viable.
30.In balancing the rights of the parties and in exercise of the court’s discretion, I direct as follows;a.Stay of execution pending Appeal is granted on condition that the Appellant remit half of the decretal sum to the Respondent and the other half be deposited in a joint interest earning account of parties’ advocates on record within 60 days of this Ruling.b.The Lower Court file shall be availed within the stated period.c.The Record of Appeal shall be prepared and served.d.Costs will abide the Appeal.e.Further mention for directions shall be on 24/7/2023