Ali v Omar [2022] KEHC 15804 (KLR)

Ali v Omar (Civil Appeal E149 of 2022) [2022] KEHC 15804 (KLR) (1 December 2022) (Ruling)

Neutral citation: [2022] KEHC 15804 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Appeal E149 of 2022

TW Cherere, J

December 1, 2022

Between

Kulume Dahir Ali

Appellant

and

Abdi Ali Omar

Respondent

Ruling

1. On 06th October, 2022, the court entered judgment in Maua CMCC No. E223 of 2021 in favour of the Respondent as against the Appellant for KES. 2. 500,000/- together with special damages of KES. 10,550/- less 20% agreed contribution, costs and interest.

2. By a notice of motion dated and filed on 31st October, 2022, Appellant seeks orders for:1. Stay of execution of judgment and decree in Maua CMCC No. E223 of 2021 pending the hearing and determination of this appeal

3. The notice of motion is premised on grounds among others that the Appellant is aggrieved by the inordinately high damages awarded to the Respondent and has filed this appeal and is likely to suffer substantial loss if the Respondent executes the judgment.

4. The application is also supported by an affidavit sworn on 31st October, 2022 by Frankline Nyaga, a legal officer with APA who are Respondent’s insurer advocate for the Applicant in which he reiterates the grounds on the face of the application.

5. In opposing the Application, Respondent filed an affidavit sworn on 09th November, 2022 in which he avers that this application is meant to delay the Respondent from enjoying the fruits of the judgment. It is proposed for the Respondent that in the event the application is granted, half the decretal sum should be paid to the Respondent and the balance of the decretal sum be deposited in court.

Analysis and Determination 6. I have considered the application in light of affidavits on record the issue for determination is whether there ought to be Stay of execution of judgment in Maua CMCC No. E223 of 2021 pending the hearing and determination of the appeal

7. Concerning stay of execution, Order 42 (6) of the Civil Procedure Rules provides:(2)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 madeb.That the application has been made without unreasonable delay; andc.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.

8. Substantial loss, in its various forms is the corner stone of best jurisdictions for granting a stay. That is what has to be presented. Therefore, without this evidence, it is difficult to see why the respondents should be kept out of their money. In ABN Amro Bank N.V. v Le Monde Foods Ltd Civil Application No. Nairobi 15 of 2002 held that:“Each party bears a specific burden regarding proof of substantial loss in a case such as before us. ……….…So all an Applicant in the position of the bank (Appellant) 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 were paid over to him and the pending appeal was to succeed. In those circumstances, the legal burden still remains on the Applicant but the evidential burden would then have shifted to the Respondent to show that he would be in a position to refund the decretal sum if it is paid out to him and the pending appeal were to succeed. This evidential burden would be very easy for a Respondent to discharge. He can simply show what assets he has – such as land, cash in the bank and so on.”

9. Applicant contends that it case that it is likely to suffer substantial loss if the Respondent executes since it is unlikely to recover the decretal sum from the Respondent.

10. The record reveals that there is consent judgment between the parties at 80:20% in favour of the Respondent dated 30th June, 2020. Whereas the Respondent has a right to enjoy the fruits of its judgment, the Applicant on the other hand has a right to have its appeal heard on merit.

11. Further to the orders issued on 01st November, 2022, it is hereby ordered:1. There shall be a Stay of execution of judgment in MauaCMCC No.E223 of2021pending the hearing and determination of the intended appeal on condition that:a.The KES. 500,000/- be paid to the Respondent within 14 days from today’s dateb.Appellant/Applicant deposits the balance of the decretal sum into an interest earning account of both advocates within 30 days from todayc.Appellant/Applicant files and serves the record of Appeal not later than 45 days’ from today’s date2. Mention on 14th February, 2023 to confirm compliance and for directions concerning the hearing of the appeal3. Costs shall abide the outcome of the intended appeal.

DATED IN MERU THIS 01ST DAY OF DECEMBER 2022. T.W. CHEREREJUDGEAppearancesCourt Assistant - Morris KinotiFor Appellant/Applicant - Mr. Mungai for Kiruki & Kayika AdvocatesFor Respondent - Mr. Amule for Khan & Associates Advocates