Ronald Nguru Gathara, Rodoken Ventures Ltd & Rachael W. Mutahi t/a Toplink Auctioneers v Cliff Mbala [2015] KEHC 3765 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL APPEAL NO. 669 OF 2011

DR. RONALD NGURU GATHARA....................................1ST APPELLANT

RODOKEN VENTURES LTD............................................2ND APPELLANT

RACHAEL W. MUTAHI T/A TOPLINK AUCTIONEERS.......3RD APPELLANT

VERSUS

CLIFF MBALA....................................................................RESPONDENT

RULING

1. The subject of this ruling is the motion dated 5th March 2015 in which the Appellants herein are praying for an order  for stay of execution of the decree pending appeal.  The motion is supported by the affidavits of Dr. Ronald Nguru Gathara sworn on 27th February 2015 plus a supplementary affidavit he also sworn on 6. 5.15.  When served with the motion the Respondent filed grounds of oppositions together with a replying affidavit, he swore to oppose the motion.  Learned counsels appearing in this appeal recorded a consent order to have the motion disposed of by written submissions.

2. I have considered the grounds outlined on the face of the motion plus the facts deponed in the affidavits filed in support and against the application plus the grounds of opposition together with the rival written submission.  The Respondent and the Appellant had a tenancy relationship over unit no. 13 at Icon Place, New Garden estate, Nairobi.  The Appellants are alleged to have unlawfully and illegally distress due to rent arrears thus allegedly breaching the Respondent’s quiet possession of the suit premises.  On 27. 7.2006, the 3rd Appellant distained and attached the Respondent’s goods name a JVC television and a refrigerator.  After exchanging several correspondences, the Appellants are said to have returned the distressed goods to the Respondent.  The Respondent alleged that his refrigerator was damaged at the time of being returned.  In the end, the Respondent filed a suit before the subordinate court seeking for damages for unlawful termination of lease and a refund for electricity, water and rent deposits, amounting to kshs.14,700/=.  The subordinate court gave judgement in favour of the Respondent of kshs.413,500/-

The Appellants preferred an appeal before this court.  The appeal was dismissed on 13. 02. 2015.  Being dissatisfied, the Appellants have now filed a notice of appeal thus expressing an intention to challenge this court’s judgement before the Court of Appeal.

3. Pending the hearing of the aforesaid appeal, the Appellants are before me seeking for a stay of execution of the decree.

4. It is the submission of the Appellants that unless the order is granted to them the Respondent is likely to execute the decree.  It is argued that if the decretal sum is paid to the Respondent, there is no guarantee that he will be able to refund the amount when required.  According to the Appellants, that is a substantial ground which may render the appeal nugatory thus causing them substantial loss.  The Respondent urged this court to find that the appeal is a non-starter for it failed to comply with Rule 77 of the Court of Appeal Rules.  It is argued that the Appellant had failed to serve the Notice of Appeal within 14 days from the date of delivery of this court’s judgement.  The Respondent also accused the Appellants for failing to file the current motion expeditiously.

5. In deciding such applications, the principles to be considered are well settled.  First, the applicant should show the substantial loss he  would suffer if the order is denied.

Secondly, whether the application was made without undue delay.

Thirdly, the issue regarding the provision security must be addressed.

6. On the first issue, the Appellants have argued that the amount awarded to the Respondent, is a colossal amount which if paid to the Respondent he may not be  in a position to refund.  The Respondent did not specifically address his  mind over this issue.  Instead, the Respondent concentrated his arguments on technical issues affecting the intended appeal.  In my view, the Appellants concerns appear to be genuine.  I find the sum of ksh.413,500/- awarded to the Respondent to be  a colossal amount which if paid to the Respondent, he may not  easily make a refund should the appeal succeed.  In my view, the appeal will in the circumstances be rendered nugatory.

7. The other issue which came up is the question as to whether or not the application was filed without unreasonable delay.  The Respondent acknowledges that the application was filed one month after the judgement was delivered.  In my humble view, I acknowledge that there was a bit of delay but that cannot be said to be inordinate.  I will in the broad interest of justice ignore the delay.

8. The final issue which came up during the arguments is that the appellants have not made an offer to deposit security for the due performance of the decree.  I think that assertion is correct.  However, the law does not enjoin the Appellants to make an offer to deposit security but it is the court’s sole discretion to make a determination.  In the circumstances of this case it is clear from the recorded proceedings that the Respondent had prayed for a refund of water, electricity and rent deposit in the sum of ksh.14,500.  He also prayed for general and punitive damages.  In the end he was awarded a cumulative sum of kshs.413,500/=.  I think it is in the interest of justice which I hereby do grant an order for stay on condition that the Appellant deposits the aforesaid amount in an interest earning account in the joint names of learned advocates from both sides within 60 days from the date of this ruling.  In default the motion shall be treated as having been dismissed.

Dated and delivered in open court this 2nd day of July 2015

J. K. SERGON

JUDGE

In the presence of:

Macharia  for the Appellant

Jaoko for the Respondent