Catherine Mugendi v Brookside Diary Ltd [2016] KEHC 1660 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NUMBER 607 OF 2015

CATHERINE MUGENDI. ………………………. APPELLANT/APPLICANT

VERSUS

BROOKSIDE DIARY LTD. ……………..………….………… DEFENDANT

(From the judgment and decree of the Hon. L. Kassan (Mr.) SPM delivered on 2/12/2015 at NBI CMCC No. 2824 of 2004)

R U L I N G

The Appellant’s/Applicant’s application dated the 8th day of December, 2015 seeks the following orders: -

a) This application be heard ex-parte in the first instance due to its urgency.

b) There be a stay of execution of the judgment and decree given on 2nd December, 2015 in Nairobi CMCC No. 2824B of 2004 pending hearing and determination of this application.

c) There be a stay of execution pending hearing of the appeal.

d) That the Appellant do deposit in this court the sum of Ksh.86,734/- which was awarded as the principal sum in the lower court as security pending hearing and determination of this application and the appeal herein.

e) Costs be in the cause.

The application is premised on the grounds set out on the body of the same and it’s supported by the affidavit of Catherine Mugendi. The deponent who was the Defendant in the lower court avers that on the     2nd December, 2015, the lower court found that she was liable to the Respondent in the sum of Ksh.86,734/- for material damage to its motor vehicle following a road accident.

The Appellant has appealed against the judgment, he contends that she had sold the vehicle KAE 517K long before the accident and a copy of the agreement was produced in the lower court. An insurance certificate taken by the new owner who was driving the vehicle at the material time was also produced.

She depones that she is not employed at the moment and she has two children who are in school. That she is a single mother and if execution is carried out against her in her current poor financial state, she would suffer substantial or irreparable loss. That the Respondent had attached and sold all her household goods after an ex parte judgment which was later set aside. She avers that she shall use all means possible to find and deposit in court the awarded sum of Kshs.86,734/- or pay it to the Respondent as a condition for stay within 21 days.

The Respondent filed a replying affidavit on the 29th February, 2016. It is averred that the Appellant does not have an arguable appeal. That the Respondent has not demonstrated substantial loss that she is likely to suffer if she pays the decretal sum to the Respondent.

The Respondent contends that the Appellant herein is not a pauper as she has always been represented by counsel since the suit which has led to this appeal was instituted more than 10 years ago. That it is unlikely that the Appellant will suffer irreparable harm by paying the decretal sum.

The Respondent has deponed that where the subject matter is a decree for payment of a quantifiable sum of money, the sum ought to be paid unless the Appellant can demonstrate that the Respondent cannot pay back the decretal sum if the Appeal succeeds. That the Respondent is a financially stable Company which can refund the appellant the decretal sum should the appeal succeed.

This court has carefully considered the application together with the material before it. The legal principles that govern stay of execution pending appeal are laid out in Order 42 Rule 6 (1) of the Civil Procedure Rules. Under that rule, an applicant must satisfy the court that: -

i) Substantial loss may result to the applicant unless the order is made.

ii) That the application has been made without unreasonable delay: and

iii) The appellant has given such security as the court may order for the due performance of such decree or order as may ultimately be binding on the applicant.

On whether the Applicant shall suffer substantial loss, it is deponed that she is not in a financial position to raise the whole decretal sum as she is unemployed and a single mother. In the case of Kenya Shell Limited Vs Kibiru (1986) KLR 410 Gachuhi, Ag JA (as he then was) expressed himself as follows: -

“It is not sufficient for the Applicant to merely state that the sum of Ksh.20,380/- is a lot of money and that the Applicant would suffer loss if the money is paid…..”

In view of that finding by the learned Judge, I find that the Applicant has not proved that substantial loss may result if a stay is not granted.

On the issue of the delay, it is noted that judgment was delivered on the 2nd December, 2015 and the application herein was filed on             16th December, 2015, a period of fourteen days (14). The application was filed on time and there was no delay.

On the issue of security, the appellant has offered to pay the Principal sum of Ksh.86,734/- to the Respondents or have it deposited in court as a condition for an order for stay of execution. The total decretal sum is Ksh.212,309/-.  The court has taken judicial notice of the fact that the Respondent is a big company which can refund the decretal sum should the appeal succeed. An order for stay of execution pending appeal is a discretionary remedy which discretion should be exercised judiciously and in doing so, the court should consider the interest of both parties in this case, the appellant who is exercising his undoubted right of appeal and the respondent who has a judgment and would wish to enjoy the fruits of the same.

Considering all the circumstances in this case and in the interest of justice, the application dated 8th December, 2015 is allowed in the following terms.

1. There shall be a stay of execution pending the hearing and determination of the appeal.

2. As a condition for the stay, the Appellant shall pay half of the decretal sum to the Respondent. That is to say a sum of Khs.106,154/-.  The money to be paid within twenty (20) days from the date of this ruling, failure to which the stay order shall automatically lapse.

3. Each party to bear its own costs of the application.

Dated, signed and delivered at Nairobi this 3rd day of November, 2016.

…………………………

L NJUGUNA

JUDGE

In the presence of

…………………………………. For the appellant

…………………………………. For the respondent