Thiriku & another v Kikuli [2022] KEHC 15374 (KLR)

Thiriku & another v Kikuli (Civil Appeal E493 of 2022) [2022] KEHC 15374 (KLR) (11 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15374 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil Appeal E493 of 2022

JK Sergon, J

November 11, 2022

Between

Andrew Karimi Thiriku

1st Appellant

Francis Njuru Kamau

2nd Appellant

and

Vincent Mayani Kikuli

Respondent

Ruling

1. This ruling is predicated on the notice of motion dated July 8, 2022 taken out by the 1st and 2nd appellants/applicants and supported by the grounds set out on its body and the facts stated in the affidavit of advocate Martha Mugo. The applicants sought for an interim order for a stay of execution of the judgment delivered by the subordinate court in Milimani CMCC No 2561 of 2020 on June 10, 2022 pending the hearing and determination of the appeal. The applicants also sought for an order to the effect that they be allowed to provide a bank guarantee from a reputable bank as security for the decretal sum.

2. To oppose the motion, the respondent swore a replying affidavit on July 19, 2022.

3. At the interparties hearing of the instant motion, the parties’ respective advocates chose to rely on the relevant affidavits sworn.

4. I have considered the grounds laid out on the body of the motion and the facts deponed in the supporting and replying affidavits respectively.

5. I wish to point out that whereas the substantive order sought is framed in terms of the proposed form of security which the applicants wish to provide, I will address the same under an order for a stay of execution of the decree pending appeal, for which the guiding provision is order 42, rule 6(2) of the Civil Procedure Rulesand which sets out the conditions to be satisfied for such an order to be granted.

6. The first condition is that the application must have been brought without unreasonable delay. I note that none of the parties addressed me on this particular condition.

7. Suffice it to say that going by the averments made by the parties, it is apparent that the impugned judgment was delivered on June 10, 2022 whereas the motion was brought less than one (1) month later. In my view, the motion has been brought within a reasonable time.

8. The second condition touches on substantial loss to be suffered by an applicant.

9. The applicants on their part state that unless an order for a stay of execution is granted, they stand to suffer irreparable loss.

10. On his part, the respondent is of the view that the applicants have not demonstrated by way of evidence the substantial loss they stand to suffer if this court declines to grant the orders sought and further, that the applicants have not raised issue with his ability to refund the decretal amount if the same is paid.

11. It is the ordinary course of principle for a successful party to be granted the privilege of enjoying the fruits of his or her judgment.

12. That notwithstanding, upon my consideration of the colossal nature of the decretal sum in question from the record, I am satisfied that the applicants have reasonably demonstrated that they are likely to suffer substantial loss if the order for a stay of execution is not granted.

13. Under the final condition which is the provision of security for the due performance of the decree or order, the applicants state that they are ready and willing to provide security by way of a bank guarantee.

14. In retort, the respondent proposes that half the decretal sum be paid to him while the remaining half be deposited in a joint interest earning account.

15. In making an order for the provision of security, this court must balance the interest of the parties. In the present instance, it is noteworthy that the respondent has not shown any pressing need that would require part payment of the decretal amount to him at this stage. It is also apparent that the respondent is not amenable to the provision of a bank guarantee.

16. In the end therefore, the notice of motion dated July 8, 2022 is found to be meritorious and hence it is allowed on the following terms:i.There shall be an order for stay of execution of the judgment and decree issued on June 10, 2022 in Milimani CMCC No 2561 of 2020 pending the hearing and determination of the intended appeal on the condition that the applicants deposit the entire decretal sum in an interest earning account in the joint names of the advocates or firms of advocates within 45 days from the date of this ruling in default of which the stay order shall lapse.ii.Costs of the motion shall abide the outcome of the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 11TH DAY OF NOVEMBER, 2022. ………….…………….J. K. SERGONJUDGEIn the presence of:……………………………. for the 1st and 2nd Appellants/Applicants……………………………. for the Respondent