Mwiti v ZKN (Suing as father and Next Friend of AF) [2022] KEHC 10126 (KLR)

Mwiti v ZKN (Suing as father and Next Friend of AF) (Civil Appeal E021 of 2022) [2022] KEHC 10126 (KLR) (19 May 2022) (Ruling)

Neutral citation: [2022] KEHC 10126 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Appeal E021 of 2022

TW Cherere, J

May 19, 2022

Between

Adams Mwiti

Appellant

and

ZKN (Suing as father and Next Friend of AF)

Respondent

Ruling

Background 1. On January 20, 2022, the court in Nkubu entered judgment in Nkubu PMCC No. 96 of 2019 in favour of the Respondent as against the Appellant for Kshs. 920,000/-.

2. By a notice of motion dated March 14, 2022, Appellant seeks orders for:1. Stay of execution of judgment in NkubuPMCC No. 76 of 2019 pending the hearing and determination of the appeal2. Applicant be allowed to furnish bank guarantee from Family Bank as security3. Costs do abide the outcome of the appeal 3. The notice of motion is premised on grounds among others that the Appellant is aggrieved by the judgment of the trial court and has filed this appeal which has high chances of success.

4. The application is also supported by an affidavit sworn by the Appellant in which he reiterates the grounds on the face of the application and on the ground that his insurer is willing to furnish a bank guarantee from Family Bank as security for the judgment sum.

5. Respondent opposed the application by way of an affidavit sworn on April 14, 2022and prays that he be paid half of the decretal sum and the balance be secured by a bank guarantee.

Analysis and Determination 6. I have considered the application in light of affidavit on record the issue for determination is whether there ought to be Stay of execution of judgment in Nkubu PMCC No. 76 of 2019 pending the hearing and determination of the appeal

7. Concerning stay of execution, Order 42 (6) of the Civil Procedure Rulesprovides:(2)No order for stay of execution shall be made under sub rule(1)Unless—a.The court is satisfied that substantial loss may result to the applicant unless the order is madeb.That the application has been made without unreasonable delay; andc.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.

8. There is a myriad of cases on what constitutes substantial loss. In Civil Appeal No. 186 of 2007 Standard AssuranceCo.Ltd–vs- Alfred Mumea Komu the Court stated-“Substantial loss, in its various forms is the corner stone of best jurisdictions for granting a stay. That is what has to be presented. Therefore, without this evidence, it is difficult to see why the respondents should be kept out of their money.”

9. Similarly, in Civil Case No. 41 of 1995 United Builders & Contractors (Africa) Limited –vs- Standard Chartered Bank Ltd the Court stated-“If there is no evidence of substantial loss to the applicant, it would be a rare case when an appeal would be rendered nugatory by some other suits.”

10. Additionally, the court in ABN Amro Bank N.V. v Le Monde FoodsLtdCivil Application No. Nairobi 15 of 2002 held that:“Each party bears a specific burden regarding proof of substantial loss in a case such as before us. ……….…So all an Applicant in the position of the bank (Appellant) can reasonably be expected to do is to swear, upon reasonable grounds, that the Respondent will not be in a position to refund the decretal sum if it were paid over to him and the pending appeal was to succeed. In those circumstances, the legal burden still remains on the Applicant but the evidential burden would then have shifted to the Respondent to show that he would be in a position to refund the decretal sum if it is paid out to him and the pending appeal were to succeed. This evidential burden would be very easy for a Respondent to discharge. He can simply show what assets he has – such as land, cash in the bank and so on.”

11. The Respondent was awarded general damages in the sum of Kshs 920,000/. This is a money decree and since there is no evidence that the Respondent is in a position to refund the decretal sum in the event that the appeal succeeds. I am persuaded that Appellant is likely to suffer substantial loss if an order of stay is not granted.

12. Security is a legal requirement under 42 (6) (2) (c) of the Civil Procedure Rules. The Appellant has offered to furnish a bank guarantee for due performance of the decree herein pending the hearing and determination of the appeal.

13. Whereas it is not my duty at this stage to determine if the Applicants have an arguable appeal, I am minded, in the interest of justice to exercise this court’s discretion under section 3A of the Act to afford the Appellant an opportunity to prosecute his appeal.

14. In the end, dated February 2, 2022is allowed in the following terms:1. There shall be a Stay of execution of judgment in Nkubu PMCC No. 76 of 2019 pending the hearing and determination of the intended appeal on condition that the Appellant Shall:a.Deposits Kshs. 500,000/- (five hundred thousand) with the court within 14 days from today’s dateb.Furnish a bank guarantee from Family Bank as security for the balance of the decretal sum within 30 days of today’s date2. The Appellant is directed to file and serve the record of Appeal not later than 21 days’ from today’s date3. Mention on June 22, 2022to confirm compliance with orders 1 and 2 above4. Costs shall abide the outcome of the intended appeal

DATED IN MERU THIS 19TH DAY OF MAY 2022T.W. CHEREREJUDGEAppearancesCourt - Morris KinotiFor Appellant/Applicant – N/A for Kimondo Gachoka & Co AdvocatesFor Respondent - Mr. Kaimba for Kaimba Peter & Co. Advocates