Abimer Transporters Limited v Haruna Mwenda Kaumbuthi [2015] KEHC 2503 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CIVIL APPEAL  NO. 25 OF 2014

ABIMER TRANSPORTERS LIMITED……………………………………………..… APPELLANT

VERSUS

HARUNA MWENDA KAUMBUTHI ....................................................................... RESPONDENT

(Being an appeal from the Judgment/decree/order  of the Chief Magistrate’s Court at Machakos (Hon. Mwangi)  delivered on the 6th day of February 2014 in Civil Case No. 748 of 2012)

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(Before B. Thuranira Jaden J)

R U L I N G

1. The application dated 26/3/2014 seeks orders of stay of execution of the lower court’s judgment issued in CMCC No. 748 of 2012.

2. It is stated in the affidavit in support that following the delivery of the judgment by the lower court, the Applicant has appealed against the whole of the said judgment.  That the appeal has overwhelming chances of success.  That the Applicant’s property is exposed to execution which may render the appeal nugatory.  It is further deponed that the application has been made without delay.

3. The application is opposed. According to the replying affidavit the Applicant’s motor vehicle’s driver was convicted of the offence of careless driving on his own Plea of Guilty.  That the Applicant did not call any witness to rebut the Respondent’s evidence.  According to the Respondent, this application is a delaying tactic meant to deny him the fruits of this judgment.  The Respondent further asserted that he is a police officer working for the Government of Kenya and is capable of refunding the decretal sum in the event that the appeal is successful. The Respondent urged this court to order that the whole decretal sum be deposited in court in the event that the application is allowed.

4. Directions were given that the application do proceed by way of written submissions.  The Applicants filed theirs but the Respondent did not file any.  I have considered the said submissions.

5.  Under Order 42 rule 6 provides as follows:-

““No order for stay of execution shall be made undersubrule (1)unless –

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

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.”

6. The lower court judgment was delivered on 6/2/2014 and the appeal lodged on 5/3/2014.  There was no delay.

7. As stated by the Court of Appeal in Kenya Shell Ltd. Vs Kibiri & Another (1986) KLR:-

“In applications for stay the court should balance the parallel prepositions, first that a litigant, if successful, should not be deprived of the fruits of a judgment in his favour without just cause and secondly that execution would render the proposed appeal nugatory.”

8. Although the Respondent has stated that he is capable of refunding the decretal sum, he has not given any details of his earnings.  As stated by Court of Appeal in National Industrial Credit Bank Ltd –vs- Aquinas Francis Wasike & Another  Civil Application Nai 238 of 2005 (UR. 144/2005):-

“This court has said before and it would bear repeating that while the legal duty is on an applicant to prove the allegation that an appeal would be rendered nugatory because a respondent would be unable to pay back the decretal sum, it is unreasonable to expect such an applicant to know in detail the resources owned by a respondent or the lack of them.  Once an applicant expresses a reasonable fear that a respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the respondent to show what resources he has since that is a matter which is peculiarly within his knowledge – See for examplesection 112of theEvidence Act,Chapter 80 Laws of Kenya.”

9. The Respondent has not given any details of his resources save for status that he is employed in the public service.  With the foregoing, I think the interests of justice will be served by the deposit of the decretal sum in court or in an interest earning account of both parties within 30 days from date hereof.  In default execution to issue.

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B. THURANIRA JADEN

JUDGE

Dated and delivered at Machakos this 20thday of March2015.

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B. THURANIRA JADEN

JUDGE