Hebatula Brothers Limited v Anthony Mutua Malusi [2017] KEHC 4709 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL  NO. 615  OF 2016

HEBATULA BROTHERS LIMITED......................................APPELLANT

-V E R S U S –

ANTHONY MUTUA MALUSI............................................RESPONDENT

RULING

1) Anthony Mutua Malusi, the respondent herein, filed an action against Hebatullah Brothers Ltd, the appellant herein, before the Chief Magistrate’s Court, Milimani Commercial Courts. In the aforesaid suit, the respondent sought for damages for the injuries he sustained in the course of the employment of the appellant as a glass cutter.  The suit was heard and in the end, judgment was entered in favour of the respondent in the sum of ksh.158,280/=.  The appellant was aggrieved, consequently it preferred this appeal.

2) The appellant has now taken out the motion dated 15. 11. 2016, the subject matter of this ruling, in which it sought for inter alia an order for stay of execution of the decree and or judgement of the trial court pending the hearing and determination of this appeal.  The motion is supported by the affidavit of Jackson Omwenga.  The respondent filed a replying affidavit of Samuel Nyambane to oppose the motion.  When the motion came up for interpartes hearing, learned counsels recorded a consent order to have the motion disposed of by written submissions.

3) I have considered the grounds stated on the face of the motion and the facts deponed in the affidavits filed in support and against the application.  The appellant/applicant was the only party which had filed its submissions.  I have also considered those submissions.

4) The applicant avers that the respondent has threatened to execute the decree therefore there is need to maintain the status quoby granting an order for stay.  It is also argued that unless the order is granted the appeal will be rendered nugatory since the decretal sum if paid will be out of reach of the appellant.  The respondent opposed the motion arguing that the application for stay was filed in bad faith and with the sole intention of preventing the respondent from enjoying the fruits of his judgment.  The respondent also pointed out that the appeal does not raise any arguable points.

5) The principles to be considered in determining an application for stay are well stated under Order 42 of the Civil Procedure Rules.    First, an applicant must show the substantial loss it would suffer if the order for stay is denied.  Secondly, the application for stay should be filed without unreasonable delay.  Thirdly that the court should consider the provision of security for the due performance of the decree.

6) On the first principle, the appellant/applicant is of the view that it would suffer substantial loss if the order for stay is denied because there is no evidence that if the respondent is paid the decretal sum he would be in a position to refund if the appeal turns successful.  The respondent did not answer this issue in his reply to the motion.  He did not demonstrate that  he is a person of means.  With respect, I am convinced that the appellant has shown that it would suffer substantial loss if the order for stay of execution is denied.

7) The second principle is that the application should be filed without unreasonable delay.  It is apparent on record, that this appeal was filed on 7. 10. 2016 while the motion was filed on 16. 11. 2016. I am satisfied that the motion was timeously filed.

8) The third principle is the provision of security for the due performance of the decree.  The appellant is saying that, it is willing to furnish security.  The respondent on the other hand is saying that if this court is inclined to grant the order for stay then, the same should be granted on condition that the appellant pays the decretal sum.  On my part I think a fair order on the issue touching on security, is which I hereby direct, that the appellant deposits the decretal sum of ksh.158,280/= in an interest earning account in the joint names of the advocates and or firms of advocates within 30 days from the date hereof.

9) In the end, the order for stay is granted on condition specified hereinabove.  Costs of the motion to abide the outcome of the appeal.

Dated, Signed and Delivered in open court this 23rd day of June, 2017.

J. K. SERGON

JUDGE

In the presence of:

...............................for the Appellant

..........................for the Respondent