Electric Link (East Africa) Limited & Joel Kioko Matata v Mary Mueni Kioko & Joshua Mue Munyao (Suing as personal representative and for on behalf of the dependants and the estate of David Munyao Mue [2015] KEHC 552 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL   APPEAL NO.  471   OF 2015

ELECTRIC LINK (EAST AFRICA) LIMITED

JOEL KIOKO MATATA…………………............................…. APPELLANTS/APPLICANTS

VERSUS

MARY MUENI KIOKO

JOSHUA MUE MUNYAO (Suing as personal representative and for on behalf of the

dependants and the estate of DAVID MUNYAO MUE………….………RESPONDENTS

RULING

The appellants/applicants  Electric Link (EA) Limited  and Joel Kioko Matataby their Notice of Motion dated 12th  October 2015 seek from his court orders for  stay of execution and  all consequential  orders arising  from Milimani CMCC 4523/2012  pending hearing  and determination of this appeal.

The application is premised on the  grounds on the body of  the Notice of Motion; that the judgment  was delivered on 7th September  2015  in  favour of the plaintiffs/respondents  herein by M/S Chesang  Resident Magistrate  at  Milimani Commercial  Court and being aggrieved by that judgment  the appellants  have lodged this  appeal.  That there is a high probability of execution issuing  and that the applicants  have an  arguable appeal which raises  serious  triable  thus the need  to allow the determination of the  appeal on merit  and that  the execution  shall render this appeal  nugatory.  That the appellants  stand  to suffer irreparable  loss and or  harm if the orders sought  are not granted and no prejudice  will be visited   on the respondent  if stay is granted and finally  that it is  in the wider interest of justice  that stay be granted.  The said application is further supported by the affidavit  sworn by George  Gitamo Onsombi advocate, reiterating  the prayers   in the Notice of Motion  and the grounds  reproduced  above  while annexing   copy of the  Memorandum of Appeal  filed herein on 6th  October  2015  and adding that  the  respondents  are not persons of means  and may not be able to refund  the decretal sum should the filed appeal succeed.

The application is opposed.  The 1st respondent MARY MUENI KIOKO

swore a replying affidavit on 15th October 2015  contending that the application is irretrievably defective, bad in law and an abuse of the court process and should be dismissed. Further, that since there was consent order on liability recorded on 27th July 2015   the only issue being challenged and for determination is quantum as decided by the trial court.  It is also deposed that the appeal lacks merit as it proposes the dismissal of suit yet liability was never an issue. That there are no good grounds why the decretal sums should   not be released to her.

In the alternative  the respondent  prays that half of the decretal  sum should be released to her since the  only issue  is quantum  and that  the appellant  will in no way be prejudiced  this being a money decree.  That the applicant has not offered security yet it is a mandatory requirement.  Finally, it is deposed that the applicant had not satisfied the legal requirements for stay pending appeal hence the application should be dismissed.

The parties’ advocates canvassed the application orally in court on 21st October 2015.  Mr Ondati advocate submitted on behalf of the applicant reiterating the application, grounds and relying wholly on the supporting affidavit of George Gitamo Onsombi.

Mr Ondati submitted that the application had been brought  timeously as required  under Order  42 Rule  6 (2) of the  Civil Procedure Rules  and that  the appellants  are ready, able  and willing to deposit  security  for the due  performance  of entire  decree or part  of the decree as  a pre-condition  for stay if so  ordered  by this court.

In opposition, Mr Nzioka advocate submitted on behalf of the respondents relying on the affidavit  sworn by the 1st respondent  that the application  does not  satisfy the  legal requirements for stay pending  appeal under  Order 42 Rule 6(2)  of the Civil Procedure  Rules.  Further, that the applicants had not shown what substantial loss will be suffered if stay was denied.  That substantial loss is a question of fact and no evidence was adduced to prove the allegation.  Mr Nzioka further submitted that albeit the applicants had deposed that the respondents are of no means, there was no deposition that the applicants know the respondents.

Further, that the affidavit  sworn by the applicants’ advocate  Mr George  Gitamo Onsombi  is inadmissible as  advocates are  not to swear  affidavits  in matters which  are contested  since he does not know the parties’ means.

Mr Nzioka further submitted that the appeal is not arguable since the Memorandum of Appeal seeks dismissal of suit in the lower court whereas judgment on liability was by consent. He nonetheless submitted that  should  this court be inclined to grant stay of execution  of decree pending appeal then at least  half of the decretal sum should be  released to his clients,  the respondents herein to enjoy  the fruits of  their lawfully obtained  judgment  as that will not prejudice the appellants  and that since  at the end of it all, there  being judgment  on liability, the respondents shall be entitled to some amount of compensation.

In a  brief rejoinder, Mr Ondati  contended that the respondents  had not  sworn any affidavit of  means  and that  albeit  they may be  entitled  to some award, this court  cannot tell how much  it is  at this stage  until  the appeal is heard and  determined and that if stay is granted  the parties can  engage in some form of  settlement  negotiations.

None of the parties relied on any case law.  I have carefully considered the application and response thereto.  The law and principles applicable in applications for stay of execution of decree or order pending   appeal are now well settled.

The law applicable is to be found in Order 42 Rule 6 of the Civil Procedure Rules, which specifies circumstances under which either he trial court or this court on appeal may order for stay of execution of a decree or order pending appeal.

Order 42 Rule 6 (2) lays down those conditions which an applicant must satisfy in order to deserve the orders of stay of execution pending appeal.  However  since enactment  of Sections1 A and 1B of the Civil Procedure  Act, courts  have since 2010  held that the requirements  under Order  42 Rule  6(2) for stay to be granted  are only but  guidelines  which  the court can  use as  beacons  in exercising  its unfettered  discretion  in deciding  whether or not to grant stay of execution pending  appeal depending  on the circumstances  of each case.

The applicant  must satisfy the court  that they  stand to suffer  substantial  loss if  stay is  not granted  and that the  application has been made without  unreasonable  delay.  The applicants must also show that they are willing to offer such security as may be binding on them as may be ordered by the court for the due performance of decree.

Whether or not to grant stay of execution of decree pending appeal is a matter of judicial discretion to be exercised in the interest of justice. The purpose of stay of execution of decree pending  appeal is  to preserve  the subject matter in dispute so that the right of the appellant  who is  exercising  his undoubted right of  appeal are safeguarded  and the appeal if successful, is not  rendered  nugatory.  See Butt Vs Rent Restriction Tribunal Madan, Miller and Porter JJA.However, in doing so, the court has to weigh against the success of the litigant who should not be deprived of the fruits of a lawfully obtained judgment.  The court is therefore called upon to ensure that neither party suffers prejudice.  The above position was espoused in the case of MsPortReitz Maternity V James Karanga Kaba; CA 63/97 where the Court of Appeal stated:

“Thatright of appeal must be balanced against an equally weighty right of the plaintiff to enjoy the fruits of the judgment delivered in his favour.  There must be a just cause for depriving the plaintiff of that right.”

In applying the above established  principles  of statutory and case law  to this case, the  applicant submitted that  the respondents are  of no means  and that should the decretal sum be paid to them  and the appeal is  successful , they  shall not be in a position  to reimburse the decretal sum.  As a result, that the appellant shall suffer irreparable loss/damage.

I agree with the  respondent’s  counsel that the applicants have  basically not demonstrated what  loss they will suffer if  the application for  stay of  execution  of decree pending appeal is not  granted.

In Equity Bank Ltd V Taiga Adams Company Ltd, CA 722/2000 the court stated and I agree that:

“………..the only way of showing  or establishing  substantial  loss is by showing that  if the decretal  sum is paid to  the respondent that is  execution  is carried  out in the event the appeal succeeds, the respondent would not be in a position to pay-reimburse as he/it is a person of no means.  Here, no such allegation is made, much less established, by the appellant/applicant..”

The respondents’ counsel has taken issue with the appellant’s counsel swearing an affidavit on behalf of his clients on contested matters, especially the deposition that they are persons of no means.  I agree that the question of means is a question of fact.  It is not sufficient for an advocate to depose that.  That the plaintiffs are not persons of means may not be able to refund the decretal amount should the   filed appeal succeed.  The advocate does not state how he came to learn/know of the respondent’s impecunuity or from what sources of information. Nonetheless the respondents  in their  replying affidavit  have not  countered  that allegation other  than  raising  the objection to an adversary’s advocate  swearing to matters which  are contested, against  established  practice  that bars advocates  to do so.

The law as it is requires  that where  there is  an allegation  that the  respondent  is not  possessed  of means, the burden  of proof shifts to the respondent  to demonstrate, by way of affidavit  of means  evidence  that they are possessed of such sufficient  means that should  the decretal sum be paid to  them and the appeal is  successful they shall be in  a position to reimburse/refund  the decretal sum. But that  lack of means  in itself  does not  necessarily  deprive  the respondent  of their  right to  a lawful judgment, and  neither does it render  an appeal  in a money decree nugatory should the money be paid out  and the appeal  is successful, particularly where  substantial loss has not been shown like  in this case.

Furthermore, albeit  the applicant  contends that they shall suffer substantial  loss, no attempt   was ever made to disclose how much  was the  award  or  decretal sum in CMCC 4523/2012 such that this court  is not  able to  discern that the award  was  so substantial  that if  paid  out to the  respondents  and the  appeal succeeds  in whole, then they may  not be in a position to reimburse  thereby  rendering this appeal  nugatory.

The respondents’  counsel has  also deposed that the appeal  herein should  only be  challenging the question of quantum  of damages assessed  by the trial court  since judgment  on liability was entered  by consent  of both parties.  The applicant has not made any submissions to rebut that contention.  I have also perused  the Memorandum of appeal  filed on  6th October  2015 and from grounds 1,2,3,4,5, 6 and  they all relate to the question of quantum of  damages.  However, in the prayers thereof the applicant/appellant prays as follows:-

That the appeal be allowed with costs.

That the judgment of the subordinate court and consequential orders there from be set aside with costs to the appellants both in the lower court and on appeal.

That Civil Milimani Chief Magistrate’s case No. 4523 of 2012 be dismissed with costs.

I find the above prayers inconsistent with the grounds of appeal, which leaves this court  with no alternative but to find that the appeal is fanciful.

On whether the application was filed without undue delay, the decision of the trial court is said to have been delivered on 7th September 2015.  This application was lodged in court on 13th October 2015, seven days after the filing of an appeal and slightly over 35 days of the date of judgment in the trial court.  There is no explanation why this applicati0on was brought after the period of filing of an appeal which is 30 days.  Nonetheless, I find that the application though filed after 30 days, the delay is not inordinate.

On the issue of security, the applicant submits that they are ready to deposit part or the whole of decretal sum in court pending determination of the appeal, to secure the decree.  The respondents seek for part of the decretal sum-at least half as the appeal is only against quantum, liability having been settled.  The applicants’ counsel  did indicate  that once stay  is granted  the  parties  can  engage  with a view  to a  settlement .

The requirement  for deposit of  security  under Order  42 Rule 6 (2)  of the Civil Procedure  Rules  guarantees  the performance  of decree should the  appeal fail while on the other hand, the  appellant  is assured  that  if the appeal is successful, it  will get the whole amount secure.  That requirement, in my view, confers upon this court the unfettered discretion to be exercised judicially, to grant a conditional stay of execution, pending appeal, depending on the circumstances of each case.

In the circumstances of this case, it is clear that   there is no disclosure of how much the decretal sum is. The appeal is against quantum only albeit the prayers seek dismissal of the suit in the court below.  The applicant is ready to offer security for due performance of decree as may be ordered by the court. The application for stay was also brought  without undue delay; the  applicant is willing to  negotiate  for settlement  after obtaining  stay; there is no evidence of any  substantial  loss likely to be suffered  by the applicant  if stay is not granted.

It therefore  follows that  this court  should not  be obsessed  with the  protection of the appellant  in total  disregard of fitting mention of the  far successful opposite party  otherwise it will be flirting with  one party as crocodile tears are shed  for the other, contrary to sound principles  for exercise of  a judicial discretion.  The ordinary principle is that a successful party is entitled to the fruits of his judgment or of any decision of the court giving him success at any stage.  That is trite knowledge  and is one of the fundamental procedural values which is  acknowledged and  normally must be  put into  effect by the way application for stay  of further  proceedings  or execution, pending appeal are handled.  In the application  of that ordinary principle, the court must  have its sight  firmly fixed on upholding  the overriding  objective  of the rules  of procedure  for handling civil cases in courts, which is  to do justice in accordance with the law  and to prevent abuse of the process  of the court. ( See Machara T/A MACHIRA & CO. Advocates V E.A Standard No.  (2).

In this case, albeit the applicants have not demonstrated substantial loss that is likely to be occasioned to them should execution issue, they have nonetheless offered the whole of the decretal sum in court to secure performance of decree.  I however  note that  it is not disputed  that the  appeal is  only against  quantum and as  to whether that appeal is  arguable  or has overwhelming chances of success is not for this  court to determine   at this stage  save that  the appeal is not frivolous  on the face of it.  Balancing  out the interests  of a successful party who is entitled to the fruits of his judgment  and the appellant’s  right of appeal, I would in the  circumstances  of this case exercise  my  unfettered discretion and grant a  conditional  stay of execution of decree made  in Milimani CMCC 4523 of 2012 on 7th September  2015  in the following  terms:

There shall be stay of execution of decree in Milimani CMCC 4523/2012 pending hearing and determination of this appeal conditional upon the appellant paying to the respondents half of the decretal sum within 14 days from the date thereof.

The other half of the decretal sum to be deposited in a joint interest earning commercial bank account to be opened and held jointly by the advocates for the appellants and respondents within 21 days from the date thereof until the hearing and determination of this appeal or as may be ordered by this court.

In default thereof the stay herein granted shall lapse and execution to proceed unless such period is enlarged by the court.

The costs of this application   shall be in the appeal.

Dated, signed and delivered in open court at Nairobi this 23rd day of November, 2015

R.E. ABURILI

JUDGE

23. 11. 2015

Coram R.E. Aburili J

C.A. Adline

Mr Kuria holding brief for Onsomi for the applicant

No appearance for respondent

Court – Ruling read and delivered in open court as scheduled.

R.E. ABURILI

JUDGE

23/11/2015