Joseph Wanjohi Irungu v Albert Kihianyu Gikaria & Beth Wangari D/O Waweru [2017] KEHC 1660 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYAAT NAIROBI

CIVIL APPEAL NO. 338 OF 2017

JOSEPH WANJOHI IRUNGU......APPELLANT/1ST DEFENDANT/APPLICANT

VERSUS

ALBERT KIHIANYU GIKARIA..............................................1ST RESPONDENT

BETH WANGARI D/O WAWERU..........................................2ND RESPONDENT

RULING

This ruling seeks to determine the Notice of Motion dated 27th July, 2017 brought under the provisions of Sections 1A, 1B &3A of the Civil Procedure Act and Orders 42 and 51 of the Civil Procedure Rules and any other enabling provisions of the law. The Application seeks a stay of the orders issued on 23rd June, 2017 by the senior Resident Magistrate pending hearing and determination of the Application and the subsequent determination of the Appeal. The Appellant also seeks an order to have the said orders of 23rd June, 2017 set aside and the Appellant be allowed to deposit in Court the log Book of the Subject matter in Chief Magistrate’s Court in case No. 5192 of 2015.

The Application is premised on the grounds on the body of the same and the Supporting Affidavit of JOSEPH WANJOHI IRUNGU,the Appellant herein. The grounds in support of the application are that on 11th April, 2017 the trial court made an order for the appellant to deposit the sum of KShs. 510,000 as security pending the hearing and determination of the suit filed therein. Being unable to raise the said amount of money, the Appellant applied for review of the said orders to allow him deposit the log book of the subject matter which orders were disallowed via orders issued on 23rd June, 2017 hence this application. The appellant avers that if the said orders are not granted he stands to be prejudiced and he does not want to appear as disobeying the court order.

The 1st Respondent filed Grounds of Objection dated 14th September, 2017 that the application is in bad faith as it was not served on the 1st Respondent until 12th September, 2017, the applicant is in contempt of Court and the application lacks merit. When the Application came up for oral submissions, Mr. Oduol appearing for the Applicant submitted that the facts of the application have not been challenged, that the application is brought in good faith and there have not been contempt of court proceedings. The Appellant further submitted that he does not want to appear as disobeying court orders and that is why he has requested to have the log book deposited as security.

Mr Chege , counsel for the 1st Respondent, submitted that the Appellant has not met the requirements of order 42 rule 6 in that he has not established the substantial loss he would suffer and that the orders prayed for provide no aspect of security for the orders that were given by the trial court.

I have considered the Application and submissions made by the parties. No authorities were cited by either Party. The Appellant seeks stay orders as well as setting aside of the orders made on the 23rd June, 2017. At this preliminary stage in the Appeal, this court cannot deliberate on the order of setting aside the trial court’s orders as that is the subject of the appeal and I am not allowed to consider the merits of the Appeal at this stage. That said, I will move on to the prayer of stay of execution of the orders issued by the trial court on 23rd June, 2017.

The guiding principles in an application for stay of execution are provided for in Order 42 Rule 6 of the Civil Procedure Rules. The said guidelines were outlined by the Court of Appeal in the case of Housing Finance Company of Kenya v Sharok Kher Mohamed Ali Hirji & another [2015] eKLRwhere the Court held that, “We cannot over emphasize that at this stage we are not required to go to the merits of the case as tempting as it may be or consider whether the issues will be successful in favour of the appellant, lest we embarrass the trial judge. We therefore find that the applicant has discharged this requirement on the balance of probabilities. We are further guided by this court’s decision in CARTER & SONS LTD. V. DEPOSIT PROTECTION FUND BOARD & TWO OTHERS – Civil Appeal No. 291 of 1997, at Page 4 as follows:

“ . . . the mere fact that there are strong grounds of appeal would not, in itself, justify an order for stay. . .the applicant must establish a sufficient cause; secondly the court must be satisfied that substantial loss would ensue from a refusal to grant a stay; and thirdly the applicant must furnish security, and the application must, of course, be made without unreasonable delay.”

The orders the subject of this application were issued on 23rd June, 2017 whereas this application was filed on 27th July, 2017. The Appellant moved this Court, on 27/7/2017, he cannot be said to have filed the application after unreasonable delay.

Substantial loss is the cornerstone in granting stay orders. The Appellant has not established what substantial loss he will suffer if stay orders are not granted. The mere allegation that the economic situation has made it difficult for him to raise the security amount is not a ground of substantial loss. The circumstances of this case are that the Appellant is accused of having defrauded the 1st Respondent when he sold a motor vehicle which did not have a clean title and as a result, the 1st Respondent returned the vehicle and demanded his money back which was totaling to Kshs. 510,000/= . This is the amount which the trial magistrate ordered to be deposited as security. In the event that the Appellant appeal is successful, I find that there should not be difficulties in the court reimbursing the Appellant the security amount and as such, no substantial loss will be suffered.

No sufficient security has been offered by the Appellant for the due performance of the order. The Appellant has not made a case on what it is to be prevented by staying the orders of the trial magistrate and for this reason, I find that the application is not merited and the same is dismissed with costs.

It is so ordered.

Dated, Signed and Delivered at Nairobi this 8thDay of November, 2017.

………………

L. NJUGUNA

JUDGE

In the Presence of

…………………………. For the Applicant

…………………………. For the 1st Respondent

…………………………. For the 2nd Respondent