Omwanga & another v Mwalimu & another [2022] KEHC 14116 (KLR)

Omwanga & another v Mwalimu & another (Civil Appeal E456 of 2022) [2022] KEHC 14116 (KLR) (Civ) (5 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14116 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E456 of 2022

JK Sergon, J

October 5, 2022

Between

David Bosire Omwanga

1st Appellant

Philip Godfrey Makhanu

2nd Appellant

and

Cathrine Kavutha Mwalimu

1st Respondent

Elihah Mwalima Muvea

2nd Respondent

Ruling

1. David Bosire Omwanga and Philip Godfrey Mukhanu the 1st and 2nd appellants respectively took out the motion dated July 5, 2022 whereof they sought for the following orders:i.That this application be certified urgent, service thereof be dispensed with and the same be heard ex-parte in the first instance.ii.That this honourable court be pleased to grant an interim stay of execution of judgment delivered by the Hon Senior Resident magistrate Selina N Muchungi (Mrs) delivered on May 27, 2022 in Milimani in Civil Suit No E718 of 2021 pending the hearing and determination of this applicationiii.That this honourable court allow the applicants/appellants provide a bank guarantee from a very reputable and well known bank in the republic of Kenya.iv.That the application be heard inter partes on such date and time as this honourable court may direct.v.That this honourable court be pleased to issue any other order and/or direction it deem fit to grant in the circumstances.vi.That the costs of this application abide the outcome of the appeal.

2. The appellants filed the affidavit sworn by Martha Mugo in support of the application. Catherine Kivuva Mwalimu and Elijah Mwalimu Muvea, the 1st and 2nd respondents respectively filed a replying affidavit to oppose the motion.

3. When the motion came up for interpartes hearing, learned counsels appearing in the matter made oral submissions. I have considered the grounds state on the face of the motion and the facts deponed in the rival affidavits. I have also considered the rival oral submissions. The main order sought by the appellants is that for stay of execution of the decree pending appeal.

4. It is not in dispute that on May 27, 2022 the trial court delivered its judgment in favour of the respondents in the sum of Kshs 2,058,850/= plus costs and interest.

5. The appellants being dissatisfied, preferred this appeal with a view of upsetting the aforesaid decision. In determining an application for stay of execution of a decree/order pending appeal three principles must manifest themselves. The first principle is that the application must be filed without unreasonable delay. Secondly, the applicant must show that unless the order for stay is granted he would suffer substantial loss. Thirdly that security should be provided for the due performance of the decree. The instant application was filed on July 5, 2022, two months after the date of delivery of judgment. I am satisfied that the application was filed without unreasonable delay.

6. The cornerstone of an application for stay of execution pending appeal is that an applicant must show the substantial loss he would suffer if the order for stay is denied.

7. In the instant application, the appellants have stated that they would suffer great injustice and prejudice if the order for stay is denied. The appellants have not specifically described the sort of loss. In the supporting affidavit the deponent merely deponed “that unless this application is heard and stay of execution granted, the appellants will suffer irreparable loss and damage.”

8. The appellants are enjoined under the rules to specify the substantial loss they would suffer if they are denied the order for stay. They have failed to discharge that burden. Having failed to establish the cornerstone of such an application, the application for stay must fail. I am persuaded by the respondent’s averment that in the circumstances, the appellants should be denied the order for stay.

9. In the end, the appellants’ motion is found to be without merit. It is dismissed with costs abiding the outcome of the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 5TH DAY OF OCTOBER, 2022. ………………………J K SERGONJUDGEIn the presence of:……………………………. for the appellant……………………………. for the respondent