“Maldip” Channa & Channa Construction Company Limited v Nguthu & another [2023] KEHC 20090 (KLR)

“Maldip” Channa & Channa Construction Company Limited v Nguthu & another (Civil Appeal E507 of 2022) [2023] KEHC 20090 (KLR) (Civ) (6 July 2023) (Ruling)

Neutral citation: [2023] KEHC 20090 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E507 of 2022

AN Ongeri, J

July 6, 2023

Between

“Maldip” Channa & Channa Construction Company Limited

Appellant

and

Jacob N Nguthu

1st Respondent

Isinya Roses Limited

2nd Respondent

Ruling

1. The application coming for consideration in this ruling is the one dated 01/08/2022 seeking stay of execution of the judgment and decree in CMCC no. 4530 of 2013 pending the hearing and determination of the appeal herein.

2. The application is based on the following grounds’i.By the judgment made in the Lower court on the 1st July 2022 the lower court entered judgment against the appellants in the sum of kshs.1,600,000/= in General damages, ksh.18,185/= in special damages, costs and interest.ii.The plaintiff had sued the appellants and the Hon. Attorney General for malicious prosecution.iii.The appellants made report to the police of the theft by the plaintiff who was their employees; the police investigated and commenced prosecution at the behest and guidance of the Hon. Attorney General.iv.The prosecution was terminated in the plaintiffs favour; though.v.The lower court effectively BUT erroneously held that the appellants were responsible for the act of the police in prosecuting the plaintiff AND NOT the Hon. Attorney General as is known in law.vi.The appellant thus preferred this appeal that has high chances of succeeding since the lower court in its judgment is manifestly and openly erroneous a citizen who lawfully and makes bonifide report of suspected crime to the police is not culpable in the event of prosecution being in favour of the suspect.vii.That the appellants shall suffer substantial loss if the stay orders do not issue at all as the decretal amount is colossal.viii.The appellants being dissatisfied with the said judgment have already filed a memorandum of appeal and applied for the certified court proceedings/judgment/decree to enable them file the record of appeal at the Court of Appeal.ix.In view thereof, there ought to be a stay of execution pending the hearing and determination of the appealx.The appellants have moved the Hon. Court timeously.xi.The said appeal shall be rendered nugatory if the stay prayed for is not granted.

3. The application is supported by the affidavit of Mardeep Singh Chenna, the appellant/applicant in which it is deposed that judgment was made in the lower court on 1st July 2022 where judgment was entered against the appellant and being aggrieved proffered this appeal which has high chance of success. He indicated that the appellants shall suffer substantial loss and the appeal shall be rendered nugatory if the order sought are not granted.

4. The respondent filed a replying affidavit sworn on 10/1/2023 in which he deposed that the applicant has not satisfied the legal pre-requisites for granting the orders sought. That it is not enough for the applicant to plead that his appeal has a high chance of success as they ought to establish a basis for the same. The applicant is bent on frustrating him in getting the fruits of his judgment as he has awaited the same from the year 2013.

5. The parties filed written submissions as follows; the appellant submitted that judgment was entered against it for the sum of Kshs. 1,600,000 as general damages and Kshs 18,195 as special damages. That Kshs. 1,618,195/ = is a substantial amount and if paid to the Plaintiff would not be recoverable at all; considering that in his Pleadings and evidence he says he has no source of income, has not worked from the year 2005 when the Police arraigned and charged him in Court. Thus, the Appellants would definitely suffer substantial loss.

6. That judgment was delivered on the 1st July 2022 and the Application made on the 1st August 2022, therefore the application was made timeously without unreasonable delay. That finally the appellants are ready and willing to abide by any order for security the court deems fit.

7. The respondent submitted that the appellant has not met the threshold as set out in Order 42 Rule 6 (2) as they did not make any effort to prove what substantial loss would be suffered in the event that the application is not granted. That in as much as the delay is not inexplicable and unreasonable, it is inexcusable as it is prejudicial on the Respondent who has spent so much time and resources in prosecution of the suit.

8. The respondent submitted that the applicant has been silent on the issue of security on this matter. The offer for security should come from the applicant, it should not be inferred or implied or left for the court to make an order for security for due performance as that would amount to stepping into the arena of dispute.

9. The sole issue for determination is whether the Appellant/ Application is entitled to stay of execution pending appeal.

10. The governing provision is Order 42 Rule 6 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 Applicants 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 Applicants”.

11. The duty of the court is to balance the interests of the parties. The appellant has a right of appeal while the respondent has a right to enjoy the fruits of his judgment.

12. The Court of Appeal in RWW vs. EKW (2019) eKLR addressed itself on that issue as follows;“The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs. 9. Indeed to grant or refuse an application for stay of execution pending appeal is discretionary. The Court when granting the stay however, must balance the interests of the Appellant with those of the Respondent.”

13. I allow stay on condition that the entire decretal sum is deposited in court within 30 days of this date.

14. The costs of this application to abide the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 6TH DAY OF JULY, 2023. A. N. ONGERIJUDGEIn the presence of:……………………………. for the Appellant……………………………. for the 1st Respondent……………………………. for the 2nd Respondent