Mboya v Matemu [2022] KEHC 639 (KLR)

Mboya v Matemu (Civil Case 53 of 2021) [2022] KEHC 639 (KLR) (Commercial and Tax) (6 June 2022) (Ruling)

Neutral citation: [2022] KEHC 639 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Civil Case 53 of 2021

WA Okwany, J

June 6, 2022

Between

Rose Mboya

Applicant

and

Mumo Matemu

Respondent

Ruling

1. The ruling is in respect to the application dated 30th September 2021 wherein the Appellant/Applicant seeks orders, inter alia, to stay the execution of the judgement and decree rendered on 4th day of June 2021 pending the hearing and determination of the appeal. The applicant’s advocates also seek leave to come on record for the applicant.

2. The application is supported by the affidavit of the applicant’s advocate Mr. Ochieng Jaoko and is based on the grounds that: -a)An adverse judgment was rendered on the 4th day of June 2021 against the Applicant.b)The Applicant elected to exercise her right to appeal following which a Memorandum of Appeal dated the 23rd day of June 2021 was filed on 2nd day of July 2021. c)For the avoidance of any doubt, the Applicant's appeal is alive.d)The Respondent has commenced the process of execution of the impugned judgement and decree.e)The Applicant believes she has an arguable appeal with high chances of success and that the same in danger of being purely academic unless this court grants stay orders as prayed herein.f)The aforesaid are arguable grounds which deserve a day in court in the appeal proceedings whereas the Applicant is desirous of the opportunity to put her case without the apprehension and anxiety posed by the imminent execution.g)The Applicant is ready and willing to abide by any such reasonable conditions as may be directed by the courth)It is trite law that the Respondent has the right to savour the fruits of his judgment; however, this right should be weighed against the Applicant's right to be heard and not to be toppled from the judgement seat.i)The Respondent will not suffer any prejudice should the court grant the orders sought herein given that he will have the opportunity to interrogate the appeal.j)The Applicant on the other hand will suffer irreparable loss and damage if stay orders are not issued in view of the execution.k)The Applicant's right to be heard is in danger of being affronted should the execution be allowed to go on unchallenged given that the appeal proceedings would be overtaken by events.

3. The respondent opposed the application through the replying affidavit of its advocate Mr. Paul Maingi Musyimi who avers that the Application is untenable, an abuse of the court process and is intended to unduly delay the settlement of the Decretal Sum. According to the respondent, the application does not meet the threshold set under Order 42 Rule 6 of the Civil Procedure Rules(CPR).

4. I have considered the application, the respondent’s response and the submissions presented by the parties herein. I find that the main issue for determination is whether the applicant is entitled to the orders sought.

5. The application for leave to come on record for a party, after judgment has been passed, is a requirement under Order 9 Rule 9 of the Civil Procedure Rules, 2010 (CPR) which provides that:When there is a change of advocate, or when a party decides to act in person having previous/y engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the court—(a)upon an application with notice to all the parties; or(b)upon a consent fled between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be.

6. In the instant case, it was not disputed that the impugned judgement was rendered on the 4th day of June 2021. It was also not disputed that the applicant’s advocates were not on record prior to the entry of the impugned judgment. I find that the prayer, by the said advocates for leave to come on record is merited and I therefore allow it.

7. Turning to the prayer for stay of execution pending appeal, it is trite that the grant of stay of execution pending appeal is provided for under Order 42 Rule 6 of the Civil Procedure Ruleswhich stipulates that: -(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 applicant unless the order is made and that the application has been made without unreasonable delay; andb.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 applicant.(4)For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been med when under the Rules of that Court notice of appeal has been given.(6)Notwithstanding anything contained in subrule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with. "

8. In the instant case the applicant appealed against the lower court’s verdict through the Memorandum of appeal dated 23rd day of June 2021. The impugned judgment was rendered on 4th June 2021 and the present application filed on 30th September 2021. I find that the application meets the first criteria condition under Order 42 Rule 6 of the Civil Procedure Rulesthat requires an applicant for stay of execution pending appeal to file the application without unreasonable delay.

9. On the issue of substantial loss, the applicant argued that the decretal sum is quite substantial and that the respondent may not be in a position to refund the same should the appellant succeed in the appeal. The Appellant added that it is ready and willing to provide any such security as may be imposed by the court, as she is a woman of means.

10. I am not persuaded that the application meets the condition on substantial loss, as the decretal sum of Kshs. 317,000 /- awarded in the judgement cannot, in the circumstances of this case, be said to be a colossal sum of money such that its payment can amount to substantial loss.

11. Be that as it may and taking cognizance of the position taken by courts that an appellant should not be denied the opportunity to pursue its appeal without the threat of execution just like the decree holder should enjoy the fruits of his judgment, I find that this calls for the court to balance the interests of both parties. In balancing the said interests, I will allow the application for stay of execution pending appeal in the following terms: -,a.The appellant shall within 30 days from the date of this ruling deposit the full decretal sum in an interest earning account with a banking institution of repute in the joint names of the advocates for both parties.b.In the event of failure to comply with the order in a) hereinabove, the stay orders shall lapse and/stand vacated without any reference to the court.c.The costs of this application shall abide the outcome of the appeal.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 6THDAY OF JUNE 2022. W. A. OKWANYJUDGEIn the presence of: -Ms Mwangi for Maingi for RespondentCourt Assistant:- Sylvia