Ojiambo v SMEP Microfinance Bank Limited [2022] KEHC 9870 (KLR)

Ojiambo v SMEP Microfinance Bank Limited (Civil Appeal E060 of 2021) [2022] KEHC 9870 (KLR) (15 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9870 (KLR)

Republic of Kenya

In the High Court at Kisumu

Civil Appeal E060 of 2021

FA Ochieng, J

July 15, 2022

Between

Merinda Lynda Ojiambo

Appellant

and

SMEP Microfinance Bank Limited

Respondent

(Being an Appeal against the Judgment/Decree dated 13th May 2021 by the Hon. Linah Akoth – Resident Magistrate in Kisumu CMCC No. 506 of 2018)

Ruling

The Appellant’s application dated 21st August 2021 is for an Order for stay of execution pending the hearing and determination of her appeal.

1. By a Judgment dated 13th May 2021 the trial court ordered the Appellant to pay Kshs 589,000/= together with interest thereon. The learned trial magistrate also ordered the Appellant to pay the costs of the suit.

2. Being aggrieved with the Judgment, the Appellant lodged an appeal at the High Court.

3. Whilst awaiting the hearing and determination of the said appeal, the Appellant filed the application herein, seeking stay of execution.

4. The Respondent opposed the application, firstly because the Appellant had already been granted an order for stay of execution.

5. In the face of the disclosure by the Respondent, the Appellant confirmed that the trial court had, indeed, already granted an order for stay of execution.

6. A perusal of the Ruling delivered by the trial court on 14th July 2021 reveals that execution was stayed until the appeal is heard and determined.

7. The said stay of execution was conditional upon the Appellant depositing the decretal amount in a joint interest-earning account, which would be in the names of the advocates for the 2 parties.

8. In the light of the fact that there was already a conditional stay of execution, the Appellant filed a further affidavit on 28th January 2022, indicating that she was aggrieved by the conditional stay. Therefore, the Appellant was now keen on securing a variation of the conditional stay.

9. The Appellant has urged the Court to vary the orders of the trial court, by substituting the requirement for the deposit of the decretal amount, with an order that the Appellant may deposit the title deed of L.R. NO. Bunyala/Bulemia/4911.

10. Pursuant to Order 42 Rule 6 of the Civil Procedure Rules, it was open to the Appellant to make an application for stay of execution, before the High Court;“…… whether the application for such stay shall have been granted or refused by the court appealed from …….”

11. However, it was incumbent upon the Appellant to disclose to this Court that the trial Court had already granted an order for stay of execution.

12. Instead, the Appellant concealed the fact that there was already in existence, an order in her favour.

13. In principle, when the Appellant had already sought and obtained a stay of execution pending the hearing and determination of her appeal, she did not require another order for stay of execution.

14. By her submissions, the Appellant told this Court thus;“The appellant in this matter seeks a variation of the condition on security as ordered by the lower court to be substituted with an order that the security for the due performance of the decree be the land parcel known as Bunyala/Bulemia/4911 measuring 0. 06 Hectares and valued at Shs 600,000. ”

15. With due respect to the Appellant, the application dated 21st August 2021 did not seek a variation of the condition on the security which the trial court had ordered.

16. As already pointed out herein, the Appellant had, originally, failed to disclose that the trial court had already granted a stay of execution.

17. By filing a further affidavit in which she now indicated her wish to seek a variation of the condition imposed by the trial court, the Appellant cannot be deemed to have amended her application.

18. In my considered opinion, the consideration to be accorded to an application for stay of execution is different from that in which the Court was obliged to accord to an application seeking a variation of the terms upon which an earlier order for stay of execution had been granted.

19. I nonetheless appreciate that the security for the due performance of the decree may come in different forms, such as a Bank Guarantee or Payment into the Court or Deposit in a joint interest-earning Bank Account.

20. Provided that the security was sufficient for the due performance of the decree, the Court may allow the Appellant to provide it in such a format as the Court deems appropriate in the circumstances of the particular case.

21. On the one hand, the Appellant ought not to be driven away from the seat of justice by onerous conditions on stay of execution. But on the other hand, the Respondent ought to be adequately protected by a security which is not just adequate but also that which could be realized efficiently.

22. In a money-decree, the easiest security to realize is money deposited either in court or in an account. However, the court would need take into account the circumstances of each case, because hard currency may not necessarily be readily available. In any event, when money was able to continue “working” by generating more, whilst the appeal was being canvassed, that might be advantageous to all the parties, ultimately.

23. The Appellant has offered to deposit the title deed of L.R. NO. Bunyala/BulemiA/4911, in Court. The said title is in the name of Veronica Mary Khabamba. In other words, the property does not belong to the Appellant.

24. I find that the proposed security would pose serious challenges, because it would require considerable legal actions before it could be converted into cash, to pay the decretal amount.

25. Secondly, if the Market Value was Kshs 600,000/= as at 3rd August 2021; it is unknown whether it might be sufficient to settle the decretal amount of Kshs 589,000/=, which continues to attract interest.

26. In the event, I reject the application dated 21st August 2021, to the extent that it sought an order for stay of execution when there is already an order for stay pending appeal.

27. I also reject the proposed variation of the conditions for stay, because the property being offered does not belong to the Appellant.

28. Nonetheless, in order not to drive the Appellant away from the seat of justice; whilst simultaneously providing an even-handed space to the parties herein, I order the Appellant to provide either;(a)A Bank Guarantee for the Decretal Amount, or(b)The Decretal Amount, which would be held in a joint interest-earning Account in the names of the advocates for the parties herein.

29. The Appellant has 30 days to meet either of the conditions; whereupon the execution shall stand stayed until the appeal was heard and determined.

30. The costs of the application shall abide the outcome of the appeal; so that the successful party will also be deemed to have been awarded the said costs. I so order because the outcome of the appeal would constitute the real assessment on the issue as to whether or not there ought to have been a stay of execution in the first instance.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 15TH DAY OF JULY 2022FRED A. OCHIENGJUDGE