Fauz Faraj & another v Ken Freight (E.A) Limited & another [2022] KEHC 12447 (KLR)

Fauz Faraj & another v Ken Freight (E.A) Limited & another (Civil Appeal E174 of 2022) [2022] KEHC 12447 (KLR) (Civ) (14 July 2022) (Ruling)

Neutral citation: [2022] KEHC 12447 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E174 of 2022

JN Mulwa, J

July 14, 2022

Between

Fauz Faraj

1st Appellant

Fred Masho

2nd Appellant

and

Ken Freight (E.A) Limited

1st Respondent

A-Z Transporters Ltd

2nd Respondent

Ruling

1. The appellants moved this court by an application dated March 24, 2022, grounded on provisions of Order 42 rule 6 of the Civil Procedure Rules (CPR) and section 3A of the Civil Procedure Act as well as Article 159(2)(d) of the Constitution, seeking the following orders:1. Spent2. Spent3. That this honourable court be pleased to grant an interim order of stay or execution of the judgment and decree entered in Nairobi Milimani CMCC No 5290 of 2014 on the March 19, 2021 pending hearing and determination of this Appeal.

2. The application is grounded on grounds stated on the face of the application and supporting affidavit sworn by the 1st appellant on the March 24, 2022

4. The application is opposed by a replying affidavit sworn on the April 20, 2022 by one, Newton N Mwangi, an advocate in the firm of Anne W Kimani co Advocates who have conduct of the case on behalf of the 1st respondent. The 2nd respondent has filed no submissions in respect of this application.

5. The applicant and the 1st respondent have filed written submissions to argue their respective cases.

6. applicant’s case and submissions are that the judgment was delivered by the trial court on the March 19, 2021 and a decree issued therefrom in the sum of Kshs 8,269,777/= plus costs assessed at Kshs 299,620/= out of which a sum of Kshs 7,606,916/= was duly paid, that despite the payment, auctioneers were instructed by the respondent to demand a sum of Kshs 10,593,582. 47 without giving credit for the then paid sum.

7. It is a further averment that soon thereafter, auctioneers were instructed to demand a further payment of Kshs 3,219,972/=. It is submitted by the 1st respondent that the sum claimed of Kshs 3,219,972/= is the subject of appeal herein, and that the applicant is willing to provide security for the contentious sum pending hearing and determination of the appeal, which continues to accrue interest. The applicant is ready to have the said sum deposited in an interest earning account, as a sign of good faith.

8. For the 1st respondent, no submissions have been filed as at the date of preparation of this ruling. By the replying affidavit, it is averred that the application is bad in law as there is no appeal properly filed as no leave of court was obtained to file the appeal form the ruling date March 4, 2022. They herein admit that the applicant has paid a sum of Kshs 962,461/= leaving the balance of Kshs 3,219,972/= which continues to attract interest.

9. I have considered the parties submissions and depositions in their rival affidavits.Orders of stay of execution are anchored on provisions of Order 42 rule 6(2) of the Civil Procedure Rules; being that an applicant must satisfy the court that substantial loss may be suffered by the applicant if stay is declined – see Primebank Ltd v Paul Otieno Nyamodi [2014] e KLR, Gulf Fabricatons v County Government of Siaya [2020] e KLR, and Kenya Shell Ltd v Benjamin Kibiru [1982-88) 1 KR, and that sufficient security has been offered.

10. What is at dispute is a money decree, in the sum of Kshs 3,219,972. The purpose for a stay order is to preserve the subject matter in dispute so that the Appellant’s rights of appeal are safeguarded should the appeal be successful and not rendered nugatory – RWW v EKW [2019] e KLR.

11. Being a money decree, there is no gainsaying that the applicant would suffer no substantial loss as security has been offered to deposit the disputed sum into an interest earning account, to await the outcome of the appeal.

12. Order 42 rule 6 (2) (b) provides that an applicant must provide such security as the court may order for the due performance of the decree.

13. As rendered in the Kenya Shell Ltd case (Supra). It is not normal in money decrees for an appeal to be rendered nugatory if the disputed sum is secured in a bank account pending hearing and determination of an appeal.

14. Upon consideration of the parties submissions, the law and relevant authorities, I find and hold that the appellant’s application dated March 24, 2022 is merited.

15. Consequently, the application is allowed upon the appellant depositing the sum of Kshs 3,219,972/= into an interest earning bank account in the joint names of the parties advocates within 30 days of this order.In default, the stay orders hereof shall automatically lapse. Each party shall bear own costs on the application.Orders accordingly.

DATED SIGNED AND DELIVERED THIS 14TH DAY OF JULY 2022. J.N. MULWAJUDGE