Anvi Emporium Limited v Sagoo & another [2022] KEHC 10852 (KLR)

Anvi Emporium Limited v Sagoo & another (Civil Appeal 103 of 2019) [2022] KEHC 10852 (KLR) (14 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10852 (KLR)

Republic of Kenya

In the High Court at Kisumu

Civil Appeal 103 of 2019

FA Ochieng, J

June 14, 2022

Between

Anvi Emporium Limited

Applicant

and

Mohinder Singh Sagoo

1st Respondent

Jaswinder Kaur Sagoo

2nd Respondent

(Being an Appeal from the Judgment and Decree of Hon. J. K. Ng’arng’ar, Chief Magistrate given at Kisumu on the 31 st July, 2019 in Kisumu CMCCC No. 404 of 2016)

Ruling

1. The application before me is for stay of execution pending the hearing and determination of the appeal which the Appellant lodged to challenge the Judgment delivered by this Court on 23rd September, 2021. 1.The Applicant told the Court that the Respondents were impecunious.2. The Respondents did not file any affidavit to challenge the facts set out in the Appellant’s supporting affidavit. As the said facts were uncontroverted, I make the following findings;a.After the incident which gave rise to the case, the Respondents lacked financial capacity to pay Kshs 130,000/- to the Imperial Hotel, Kisumu, where they were hosted.b.The Respondents currently spend most of their time in the United Kingdom, where their children live.c.The Respondents closed down their only business in Kisumu.

3. Based upon those facts, I find that if the decretal amount was paid out to the Respondents whilst the appeal was still pending, they would probably be unable to pay back the said sums, in the event that the appeal was ultimately successful.

4. The Respondents appreciate that the corner-stone of the Court’s jurisdiction, when called upon to determine whether or not to stay execution of a judgment pending an appeal, is that substantial loss would result to the Applicant unless a stay is granted.

5. It is well settled that an appeal ought not to be rendered nugatory, by making payment; winning the appeal; and then discovering that the Respondent is unable to refund that money.

6. The Respondents made a choice not to challenge the matters of fact which the Appellant spelt out. In the circumstances, the Court cannot make an assumption about their financial ability. There is no material before me, which could lead the Court to hold that the Respondents were persons of substance, who could therefore repay the decretal amount if the appeal succeeded after they had been paid.

7. I appreciate that there is a need for the Court to guard against any obsession to protect the Appellant, whilst disregarding the Respondent’s right to the fruits of the Judgment.

8. Ordinarily, a successful party is entitled to the fruits of his Judgment. Therefore, the Court must always be cognizant of the need to uphold the rights of the successful party. To my mind, it is because of that recognition of the rights of the successful party, that the law-makers deemed it prudent to impose an obligation upon the Appellant to provide such security as would be required for the due performance of the decree as may ultimately be binding on the Appellant.

9. In this case, the sum of Kshs 4,258,153. 00 was deposited in a Joint Interest-Earning Account, which is held in the name of the lawyers representing the parties.

10. Meanwhile, the Decree was for the sum of Kshs 6,537,006/=.

11. I find that, to a large degree, the decretal amount has been secured through the funds held in the joint account.

12. The Respondents submitted that the Appellant must be called upon to provide security for the whole decretal amount, if the Court was minded to stay execution.

13. In my considered view, until the appeal was heard and determined, it must be deemed that the Respondents were entitled to the decretal amount.

14. Therefore, when the security was not in tandem with the decretal amount, it would be incapable of enabling the due performance of the decree which may ultimately be binding on the Appellant.

15. In the final analysis, I find that the Appellant has satisfied me that unless the execution of the Decree was stayed pending the hearing and determination of the appeal, the Appellant would suffer substantial loss. This finding is based on the uncontroverted evidence concerning the Respondents’ impecuniosity.

16. Therefore, I do now order that there shall be a stay of execution until the appeal is heard and determined; provided that the Appellant provides security for the due performance of the decree.

17. In order to constitute adequate security, the Appellant is ordered to provide a further sum of Kshs 2,000,000/=, which will be held in a Joint Interest-Earning Account, by the advocates representing the parties herein.

18. The further funds may be held in a separate account or may be added into the already existing joint account.

19. The Appellant is allowed 60 days to provide the extra sum of Kshs 2,000,000/=.

20. Finally, the costs of the application herein, shall be in the cause in the substantive appeal. If the appeal is successful, the costs of the application shall be payable by the Respondents. But if the appeal did not succeed, the Appellant will pay the costs to the Respondents.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 14TH DAY OF JUNE 2022FRED A. OCHIENGJUDGE