Michael Mureithi Kathenya & Magdalene Kendi Mukangu (Suing as the legal representatives of the estate of Dorcas Kathambi (Deceased) v Joseph Kinoti M’arimi [2017] KEHC 3938 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

MISC CIVIL APPLICATION NO. 3 OF 2017

MICHAEL MUREITHI KATHENYA & MAGDALENE

KENDI MUKANGU (Suing as the legal representatives of the estate of

DORCAS KATHAMBI (Deceased)….........PLAINTIFFS/RESPONDENTS

-VS-

JOSEPH KINOTI M’ARIMI..........……………….DEFENDANT/APPLICANT

RULING

[1] This decision relates to Notice of Motion dated 1st February 2017 which is expressed to be brought under Section 3, 3A and 95 of the Civil Procedure Act (CAP 21), Order 22 Rule 22, Order 42 Rule 4 and 6, Order 51 Rule 1 and 3of the Civil Procedure Rules 2010 and all other enabling provisions of the law.The Application seeks for the following orders from the court:

1. THAT this application be certified urgent, service be dispensed with thereof and the same be heard ex-parte in the first instance

2. THAT this Honourable Court be pleased to grant stay of execution of the Judgement/Decree issued by the Honourable D. A Ocharo Senior Resident Magistrate Nkubu Court on the 2nd March 2016 pending the hearing and determination of this application.

3. THAT this Honourable court be pleased to stay the Execution of the Judgment/Decree obtained pending the hearing and determination of the Defendant’s/Applicant’s Appeal filed at the High Court of Kenya at Meru as Civil Appeal No. 21 of 2016.

4. THAT the application be heard inter partes on such date and time as the Honourable Court may direct.

5. THAT the costs of this application the outcome of the Appeal.

[2] The basis for applying is that a judgment was entered on 2nd March 2016 for the Plaintiff for general damages of Kshs. 504,141/- plus costs and interest less 5% contributory liability.  The Defendant being dissatisfied filed an appeal at the High Court in Meru Civil Appeal No.21 of 2016 and applied for stay pending hearing and determination of the appeal.But theapplication was dismissed by the Honourable D.A Ocharo Senior Resident Magistrate Nkubu via a ruling dated 23rd November 2016 which was deliveredexparte.The Defendant was only able to access the file on 23rd January 2017 and hefiled this application. More important is that the Plaintiffs have executed the judgment and served the Defendant with a warrant of attachment. Therefore, the Applicant is of the view that, unless stay of execution is granted the Respondents will levy execution against the Applicant causing him irreparable damage and substantial loss. According to the Applicant, the Respondent is a person of straw and he will not be a position to refund the decretal sum in the event he executes, thus, rendering the appeal nugatory. The Applicant stated that he is ready to furnish such reasonable security as the court may direct pending the hearing of this application and the file filed No.21 of 2016 for the Applicant has high chances of success.

[3] The Application is supported further by the supporting affidavit of one Maureen Adenje, the Claims Manager at Directline Assurance Company Limited, which is the insurers of motor vehicle registration number KBW 322R- the subject vehicle in this claim. The Applicant submitted in support of his application. He reiterated the above arguments except he emphasized that the lower court erred in dismissing his application for stay on the ground that the Applicant filed two applications seeking similar orders; one in the lower court and another in the high court, for at no particular time were the two applications pending before court at the same time. The High court application Misc. 32 of 2016 is dated 11th April 2016 while the lower court application is dated 25th April 2016.

Respondents opposed application

[4] The Respondents filed replying affidavit sworn by Michael Mureithi dated 15th February 2017. In his affidavit he states that he believes the application lacks merit, is misconceived and is made mala fides with the sole intention of delaying the expeditious disposal of the suit and the intended execution pursuant to the judgment entered in favour of them. That he is aware of the judgment in this matter that was delivered in their favour on 18th May 2016 by Honourable D. A. Ocharowhere the Applicant had applied for a stay of execution of the judgment therein for a period of 30 days. Thereafter upon the lapse of the stay theApplicant failed to file an application seeking for an extension of the stay whereas the advocates on record sought to execute the judgement and decree to which the Applicant filed a motion in the High Court in Meru seeking a stay  of execution vide Meru Miscellaneous Civil Application No.32 of 2016. The judge did not grant the stay orders and directed that the application be served upon  us for inter parties hearing on the 21st April 2016 to which their advocates on record filed a reply and parties were directed to dispose of the application by way of written submissions. The Applicant’s failed to file submissions and chose to abandon the same. Thereafter, the Applicant’s filed a similar application dated 25th April 2016 in the SRM court at Nkubu in Nkubu Civil Suit 137 of 2016 where the magistrate refused to grant the stay at the ex-parte stage and ordered that the Respondent be served for inter parties hearing. The magistrate dismissed the application on 23rd November 2016. The Respondent stated that it is untrue that the ruling was delivered ex-parte and that the Applicant was unable to access the file for it is incumbent upon the said firm to attend court to take a ruling on such an important application made under a certificate of urgency. Moreover, the Applicant’s firm has not indicated any difficulty that the firm had in accessing the file and nothing has been produced in form of a letter to the learned magistrate or executive officer to show that the file was missing or misplaced.

[5] The Respondent claims that the ruling was delivered on the 23rd November 2016 and this application was filed on the 1st February 2016. It is clear that there is inordinate delay in bringing the instant application; and the delay was not explained and as such inexcusable. The Applicant was awakened by the letter from auctioneers. On that ground, the prayed the request for stay of execution to be decline.

[6] The Respondent further submitted that he works at Bidco Oil Refineries inThika and is also a businessman and his wife is employed as a secretary at Materi Girls Secondary School in Meru. He is not, therefore, a man of straw depicted by the Applicant. To him, nothing has been produced to support the claim that he is aman of straw and beseeched the court to disregard the argument altogether. He also accused the Applicant of “shopping” around for a forum to grant a stay and frustrate the Respondents and verily believes that this is an abuse of the court process.  The Respondents have waited with a lot of anxiety and pain for the court to deliver substantive justice for the loss of their children.

[7] The Respondents further state that the Applicant’s application is supported by Maureen Adanje Affidavit, who works at Directline Assurance Company Limited who are insurers of the Motor vehicle registration number KBW 322R.  That the Respondent ought to have deposed to the substantial loss that he stands to suffer if the stay is not granted.

DETERMINATION

[8] This is an application for stay of execution pending appeal. Under order 42 rule 6 of the Civil Procedure Rules. I will not re-invent the wheel. Stay of execution pending appeal is a discretionary remedy which is issued if the court should be satisfied:-

(i)  That there is sufficient cause to order stay;

(ii) That substantial loss would occur unless stay is granted;

(iii) That theapplicant will provide security for the performance of the decree that might ultimately be binding upon the applicant;

(iv)  And of course that the application was brought without undue delay.

See the case of Halai& Another v. Thorton& Turpin (1963) LTD [1990] KLR 365where the Court of Appeal, Gicheru JA, Chesoni&Cockar Ag. JA held that:

“The High Court’s discretion to order a stay of execution of its order or decree is fettered by three conditions. Firstly the applicant must establish a sufficient cause, secondly the court must be satisfied that substantial loss would ensue from a refusal to grant stay and thirdly the applicant must furnish security. The application must of course be made without unreasonable delay.”

[9] The Applicant was aware of the judgment in this matter which was delivered on 18th May 2016 by Honourable D. A. Ocharo. The Applicant even applied for a stay of execution of the judgment therein for a period of 30 days. The stay was granted. Thereafter, the Applicant went to slumber until the stay and time to appeal lapsed. He however, albeit belatedly, applied for stay of execution and extension of time. Only extension of time was granted by this court. The Applicant was again awakened by execution of the decree. It also seems that at one time the Applicant maintained two applications for stay of execution; one in this court and another in the lower court. Nonetheless, I may not take much offence on the said scenario as the Applicant was at liberty to apply to this court whether the application for such stay shall have been granted or refused by the court appealed from. But parties should be tidy in the way they do things to avoid being accused of abuse of process. In sum the Aplicant has cause delay in this matter in the manner he did things. But despite the unsatisfactory state of affairs, is there sufficient cause to order stay of execution?

[10] Of significance, the cornerstone of the jurisdiction of the court to order stay of execution pending appeal as provided in Order 42 rule 6 of the Civil Procedure Rules that substantial loss will be visited upon the Applicant. The purpose of stay therefore is to prevent substantial loss occurring. One such loss would ensue if the subject of the appeal is dissipated; the successful appellant will only be holding barren decree. I have referred to such appellant as a pious or mere explorer in the judicial process. More specifically, in money decrees, substantial loss will occur if the Respondent is not able to refund the decretal sum to a successful appellant. It is exactly that kind of hopelessness the remedy of stay of execution pending appeal is designed to avert. Applying this test, is the Respondent a man of straw as has been alleged?

[11] The Applicant in their submissions have stated that the judgment is of a substantial amount and unless stay granted they may not be able to recover from the Respondents who is a man of straw. They cited the case of High Court of Kenya at Mombasa Civil Appeal No. 40 of 2014, Kenya Orient Insurance Co. Ltd vs. Paul MathengeGichuki& Another [2014] eKLRto support their proposition that the burden of proof shifts to the Respondent the moment the appellant states that it is unaware of the respondent’s resources. I have said time and again that the legal burden does not shift. Only evidential burdenshifts to the party who will fail unless he rebuts the preponderant evidence that has been adduced by the party bearing the legal burden. It seems that the Applicant has mixed these two distinct legal concepts; legal burden of proof and evidential burden. Nonetheless, mere stating that one is not aware of the financial means of the Respondent is not alone sufficient to discharge the legal burden of proof which rests on the Applicant that the Respondent cannot refund the decretal sum herein. The Applicant merely stated that the Respondents is a man of straw. He did not raise any doubt as to the financial ability of the Respondent to make a refund of the decretal sum. There is therefore no ground of calling upon the Respondent to establish his means.

[11] Now if I strictly place this application on the scales of law, it may not pass. However, in the interest of justice and in order to balance the right of the Applicant to appeal with that of the Respondent to immediate realization of his judgment, I shall order stay of execution on condition that:-

(1) The Applicant shall within 30 days of today pay

(i)  One half of the decretal sum to the Respondent;

(ii) The other one half to an interest earning account in the names of counsels for the parties; and

(iii) Auctioneers charges to be taxed and or agreed among the parties.

(iv) Costs of the application are awarded to the Respondent.

Dated, signed and delivered in open court at Meru this 19th day of July 2017

---------------------

F. GIKONYO

JUDGE

In the presence of:

Mr. Mwirigi advocate for Kairu McCourt for applicant

No appearance for respondent

---------------------

F. GIKONYO

JUDGE