Hebatulla Brothers Ltd v Michael Nguthu Kimwele [2017] KEHC 1234 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL  NO. 234  OF 2017

HEBATULLA BROTHERS LTD ...........................................APPELLANT

-V E R S U S –

MICHAEL NGUTHU KIMWELE ....................................... RESPONDENT

RULING

1) Hebatulla Brothers Limited, the applicant/appellant herein, filed a notice of motion dated 22/5/2017 the subject matter of this ruling in which it sought for the following grounds:

1. That this application be certified urgent and the same be hear exparte in the 1st instance.

2. That there be a temporary stay of execution of the decree issued in Milimani CMCC No. 1942 of 2013 pending the hearing and determination of this application.

3. That there be a stay of execution of the decree issued in Milimani Chief Magistrate’s Civil Case no. 1942 of 2013 pending the hearing and determination of this appeal.

4. That the costs of this application be provided for.

2) The motion is supported by the affidavit of Jackson Omwenga.  When served, the respondent herein filed the replying affidavit of Michael Nguthu Kimwele to oppose the motion.  When the motion came up for interpartes hearing, learned counsels appearing in this matter 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.  I have also considered the rival 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.

5) 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 appeal would not be rendered nugatory if the judgement is settled since the appellant/applicant can recover the said sums from the respondent salary in the event they are successful in the prosecution of the appeal, which he thinks has no merit whatsoever.

6) The principles to be considered in determining an application for stay of execution 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.

7) 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 the respondent is not a person of means.  The respondent ought to furnish court with an up to date payslip as evidence that he is a person of means as opposed to the one he tendered in court which is for May 2017.  If the decretal sum or part of the sum is passed over to him, then the chances of recovering  the same will be nil.

8) The respondent on the other hand  avers that he is a person of means and a permanent employee of the applicant herein  hence no reason why he should not be paid what is due to him, which sums can be fully recovered from his salary in the event it is successful in the appeal.

9) 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.

10) The second principle is that the application should be filed without unreasonable delay.  It is apparent on record, that this appeal was filed on 16th May 2017  while the motion was filed on 22nd May, 2017. I am satisfied that the motion was timeously filed.

11) 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.392,405/= in an interest earning account in the joint names of the advocates and or firms of advocates within 30 days from the date hereof.

12)  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 10th  day of November, 2017.

J. K. SERGON

JUDGE

In the presence of:

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

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