Joyce Kirika v Mercy Nzasu Maithya [2022] KEHC 2359 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MILIMANI LAW COURTS

CIVIL APPEAL NO. E587 OF 2021

JOYCE KIRIKA...................................................................................................APPELLANT

-VERSUS-

MERCY NZASU MAITHYA..........................................................................RESPONDENT

RULING

1. The subject matter of this ruling is the Notice of Motion dated15th October, 2021 taken out by the appellant/applicant herein, in which it sought for an order for stay of execution of the judgment/decree delivered on 27th August, 2021 in Milimani CMCC no. 5079 of 2016 and all consequent orders, pending the hearing and determination of the appeal.

2. The respondent opposed the Motion by filing the replying affidavitsworn by the respondent, Mercy Nzasu Maithya on 2nd November 2021.

3. When the Motion came up for interparties hearing before thiscourt, the parties’ respective advocates chose to rely on the averments made in their respective affidavits.

4. I have considered the grounds laid out on the body of the Motion,the facts deponed in the affidavits supporting and opposing the Motion and the brief oral arguments.

5. A brief background of the matter as seen in the record is that therespondent instituted a suit against the applicant and sought for general damages and special damages of Kshs.3000/= together with costs arising from an accident.

6. Upon hearing the parties, the court vide the judgment deliveredon 27th August, 2021 awarded the respondent an aggregate sum of Kshs.667,540/= as damages plus costs of the suit and interest at court rate. Being aggrieved by the aforementioned decision the applicant appealed to this court against the lower court’s judgment.

7. In her affidavit filed in support of the motion dated 19/10/2021,Ms. Joyce Kirika stated that his appeal has high chances of success and that the respondent may levy execution against them and her Appeal will be rendered nugatory as the same will cause the appellant/applicant to suffer irreparable loss and damage.

8. She avers that if the decretal amount is paid, the respondentwould not be in a position to refund the same if the appeal turns successful and that she has not disclosed nor furnished the court with any documentary evidence to prove her financial standing.

9. She contends that she is willing and able to furnish a bankguarantee of the entire decretal amount in court as security.

10. In response, Ms. Mercy Nzasu Maithya stated that no executionprocedures have begun and no such step has been established.  It is also argued that the Applicant misled the court in order to obtain the stay orders herein. She went on to state that the Applicant's claims of imminent execution were unjustified since they were made to seek orders by concealing important facts.

11. She avers that the Applicant has failed to provide any security forthe decree's proper execution as required by law, and that the appended marked JK3 purporting to be a bank guarantee will have expired before the application's determination, rendering it illegal and insignificant.

12. She further avers that the applicant has failed to show the natureof the substantial loss she would suffer if the stay is not granted. She further stated that because the Applicant did not testify or even provide witnesses during the lower court hearing, the Respondent's testimony was never rebutted or controverted, and hence the Application and Appeal has no basis at all.

13. I have considered the grounds stated on the face of theApplication, the affidavits both filed in support and against the Application relied upon.

14. The guiding provision in considering an application seeking anorder for a stay of execution is Order 42, Rule 6(2) of the Civil Procedure Rules which sets out the following conditions in determining an application for stay:

i. The application should have been brought without unreasonable delay;

ii. The applicant must demonstrate the substantial loss to be suffered; and

iii. There must be provision of security for the due performance of the decree or order being appealed against.

15. Under the first condition is whether the application was filedwithout unreasonable delay?  The application has been filed two months after the delivery of the judgement.  It is noted that the appeal was filed on 17th September, 2021 a month after the delivery of judgement thus signaling the Applicant’s interest in pursuing the appeal.  It is only after the Respondent’s counsel wrote to the Applicant’s counsel on 30th August, 2021 about the intention to execute that the Applicant found it necessary to file the instant application.  There is thus no inordinate delay on the part of the Applicant.

16. Under the second condition on substantial loss, the applicant onher part is apprehensive that if the decretal amount is paid to the respondent, the likelihood of recovering the amount from the respondent should the appeal succeed is slim. The respondent is of the view that the applicant has not demonstrated by way of evidence the substantial loss they stand to suffer in the circumstances.

17. The question on who has the burden of proof on the issue ofrefund of the decretal sum was discussed by the Court of Appeal in the case of National Industrial Credit Bank Ltd v Aquinas Francis Wasike & another [2006] eKLRwhen it held that:

“Once an applicant expresses a reasonable fear that a respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the respondent to show what resources he has since that is a matter which is peculiarly within his knowledge…”

18. In the absence of anything to ascertain the respondent’s financialcapacity to refund the decretal sum, I am satisfied that the applicant has reasonably demonstrated that she stands to suffer substantial loss if the order for a stay of execution is not granted.

19. Under the final condition which is the provision of security for thedue performance of the decree or order, the applicant stated that she is ready and willing to provide security by way of a bank guarantee. On the other hand, the respondent is not comfortable with the bank guarantee provided by the applicant which according to her will expire before determination of this application.

20. In making an order for the provision of security, this court mustbalance the interest of the parties. In the present instance, it is noteworthy that the respondent has not shown any pressing need that would require payment of part of the decretal amount to him at this stage. It is also noteworthy that the respondent is not amenable to the provision of a bank guarantee.

21. In the end therefore, the Motion dated 15th October, 2021 isfound to be meritorious and it is allowed, therefore giving rise to issuance of the following orders:

i. There shall be an order for stay of execution of the judgment and decree issued on 27th August, 2021 pending the hearing and determination of the appeal on condition that the applicant deposit the entire decretal sum in an interest earning account in the joint names of the advocates and or firms of advocates appearing in this appeal within 45 days from the date of this ruling.

ii. In default the stay order shall automatically lapse and the respondent may execute.

iii. Costs of the Motion shall abide the outcome of the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 11TH DAY OF

FEBRUARY, 2022

...........................

J. K.  SERGON

JUDGE

In the presence of:

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

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