Fredrick Kariuki Munene & Joseph Musyoka Nzavu v Joseph Musyoka Nzavu [2019] KEHC 9993 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITUI

CIVIL APPEAL NO. 83 OF 2018

FREDRICK KARIUKI MUNENE...........................................1ST APPELLANT

MUUSI KIITI KIIO..................................................................2ND APPELLANT

VERSUS

JOSEPH MUSYOKA NZAVU......................................................RESPONDENT

R U L I N G

1. The Applicants approached this court by way of Notice of Motion seeking stay of execution of the Judgment of Hon. Munguti in the Kitui Chief Magistrate’s Court Civil Case No. 522 of 2016 and any Decree or Prder consequential upon that Judgment, pending hearing and determination of the Appeal herein.

2. The application is premised on grounds that the Judgment was entered on the 5th September 2018.  That in the course of hearing an attempt to introduce Exhibit 8 (letter from Britam) was rejected on grounds that it was secondary evidence and its makers were not called to testify. That in a most unusual manner, the trial Court unilaterally, and without reference to the parties, resurrected the rejected evidence and founded its judgment on the impugned evidence. Therefore, if orders sought are not granted the applicants will suffer substantial damage.

3. The second Applicant having been authorized by the first Applicant deponed an affidavit in support of the application where she averred that the learned Magistrate made grave errors in evaluating the evidence and at arriving at his determination such that if orders of stay of execution are not in force the Respondent will initiate execution proceedings against the decretal sum hence rendering the Appeal nugatory as the Respondent may not be able to refund the sum in event of the Appeal succeeding; The Respondent will not suffer any prejudice that cannot be redressed if the orders sought are granted and the application has been made without undue delay.

4. In response, the Respondent swore a Replying Affidavit where he deposed that the applicants being shrewd fraudsters should be ordered to furnish security in due performance of the decree of the Court; That the applicants redeemed the subject motor-vehicle from Equity Bank Limited and sold it to a third party as shown in the annexed Log Book and caused it to be transferred to the 2nd Applicant. That he is a teacher with a monthly income of Kshs. 62,391/= and also a commercial farmer with land, heads of cattle and goats therefore he has the ability to refund any part of the decretal amount should the Appeal succeed. Therefore he asked for an order depositing the decretal sum in an interest earning account to be held by both Advocates.

5. Directions in the matter were given for the application to be canvassed by way of written submissions, however, none of the Advocates complied therefore I will rely on affidavit evidence.

6. The power of the court to grant or decline an application for stay of execution is discretionary and the principles of granting the same is provided for in Order 42 Rule (6) of the Civil Procedure Rules which states as follows:-

“(1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.

(2) No order for stay of execution shall be made under subrule (1) unless—

(a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and

(b) 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.

(3) Notwithstanding anything contained in subrule (2), the court shall have power, without formal application made, to order upon such terms as it may deem fit a stay of execution pending the hearing of a formal application.

(4) For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given.

(5) An application for stay of execution may be made informally immediately following the delivery of judgment or ruling.

(6) Notwithstanding anything contained in subrule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.”

7. In the case of Butt vs. Rent Restriction Tribunal Civil Appeal No. NAI 6 of 1979it was stated that:

“(i) The power of the court to grant or refuse an application for a stay of execution is discretionary power.  The discretion should be exercised in such a way as not to prevent an appeal.

(ii) The general principle in granting or refusing a stay is; if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the Judge’s decision.

(iii) A Judge should not refuse a stay if there are good grounds for granting it merely because in his opinion a better remedy may become available to the applicant at the end of the proceedings.

(iv) The court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances of the case and its unique requirements.”

8. This means that it behooves the Applicants to satisfy the Court that:

i)   Substantial loss may result unless orders sought are granted;

ii)  The application has been made without unreasonable delay;

iii)  The Applicant is ready and willing to give such security as the Court may order for the due performance of the decree or order.

9. The Judgment in the matter was delivered on the 5th September, 2018and the Appeal and application were filed on the 26th September, 2018. This was 21 days later. There was no unreasonable delay in filing it.

10.  It is urged that the Applicants will suffer substantial loss if the order sought is not granted. In this case the Applicants argue that the loss will emanate from the fact of the Respondent’s inability to refund the decretal sum if paid. The evidential burden therefore shifts to the Respondent to prove otherwise. (See Socfinac Company LTD vs. Nelphat Kimotho Muturi (2013) eKLR;).

11.  In an endeavour to prove the Applicants wrong, the Respondent has demonstrated that indeed he is a teacher by profession with an income of Kshs. 62,391/=.  Annexure ‘JNN2’ as a copy of his pay slip for the month of July, 2018. Its total earnings are Kshs. 62,391/= but he has commitments and his net salary is Kshs. 21,760/=.

12.   It is interesting that although the application is brought pursuant to the Provision of Order 42 Rule 6 of the Civil Procedural Rules the Applicant did not intimate any willingness on their part to avail security for due performance of the decree.  In the case of Aron C. Sharma vs. Ashana Raikundalia T/A Rairundalia & Co. Advocates it was stated by Gikonyo J. that:

“The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant.  It is not to punish the judgment debtor … Civil process is quite different because in civil process the judgment is like a debt hence the applicants become and are judgment debtors in relation to the respondent.  That is why any security given under Order 42 rule 6 of the Civil Procedure Rules acts as security for due performance of such decree or order as may ultimately be binding on the applicants.  I presume the security must be one which can serve that purpose.”

13.   It is therefore in the interest of justice for the Applicants to furnish security for due performance of the decree.

14.   Accordingly, I allow the application on condition that the Applicants deposit security in the sum of Kshs. 700,000/=in an interest earning account with a reputable financial institution in the joint names of the respective Advocates of the parties herein within thirty (30) days from the date of this Ruling. In default, the execution to proceed.

15.   It is so ordered.

Dated, Signed and Deliveredat Kitui this 9thday of January,2019.

L. N. MUTENDE

JUDGE