Rayan Coach Limited v Rosemary Mule Mwangangi & 2 others

3. d. That this Honourable Court allows the Appellant/ Applicant to furnish the Court with security in the form of a Bank Guarantee from Family Bank pending the full hearing and determination of this Appeal. e. That the costs of this Application abide the outcome of the Appeal. The application is opposed by the Respondent vide his Replying Affidavit deponed by Rosemary Mule Mwangangi but sworn by Felista Syokau Wanza on 14th February 2025 and requests this Honorable Court to dismiss the application with costs to the Respondent. Factual Background 4. The Respondent instituted a suit against the Appellant and the suit was prosecuted to finality. Judgment was entered on 4th December 2024 and the Appellant/ Applicant was found to be 100% liable. The court awarded quantum as follows; General Damages for pain and suffering of Kshs.100,000/= damages for loss of expectation of life of Kshs.100,000/=, Loss of dependency of Kshs.11,200,000/=, special damages of Kshs.391,442/=plus costs and interest. 5. The Applicant herein being dissatisfied with the said Judgement, filed a Memorandum of Appeal dated 19th December 2024 and filed in court on 24th December 2024 being this appeal and thereafter applied for stay of execution pending hearing and determination of this application and the Appeal. Analysis and Determination 6. I have considered the application, the supporting affidavit, the Replying Affidavit and the rival submissions filed by Parties’ counsel as well as the judicial decisions relied upon. In my view, the issues for determination are as follows: a. Whether the supporting affidavit sworn by Ibrahim Omar in support of the application is incompetent. b. Whether the Applicant/Appellant has met the criteria for grant of orders of stay pending Appeal. a. Whether the supporting afidavit sworn by Ibrahim Omar in support of the application is incompetent. 7. I note that the Respondent has in the Replying Affidavit deponed at paragraph 3 that the deponent of the Supporting Affidavit is not a party to this suit and neither has he disclosed his relationship with the Appellant herein which is a corporate body nor has he disclosed in what capacity he has sworn the Supporting Affidavit on behalf of the Appellant. The application as drawn is therefore fatally defective for being in violation of the provisions of Order 19 rule 3(1) as the Supporting Affidavit is sworn by a person who is not a party to this suit and as such is not able to prove the facts on his own personal knowledge and as such the said affidavit is incompetent and inadmissible and same should be struck out. 8. Order 19 Rule 3(1) of the Civil Procedure Rules provides as follows: Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove: Provided that in interlocutory proceedings, or by leave of the court, an affidavit may contain statements of information and belief showing the sources and grounds thereof. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14405/eng@2025-07-29 2

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9. I have looked at the said supporting affidavit sworn by Ibrahim Omar and he depones that he is the operations manager of Rayan Coach Limited, the Appellant/ Applicant and registered owner of motor vehicle registration KCZ 004A at whose instance this claim is being prosecuted. He is well conversant with the issues relating to this suit, hence competent to swear this affidavit. The said Omar further avers that he knows of his own knowledge that the suit motor vehicle herein is insured by Directline Assurance Company and they instructed the firm of Kimondo Gachoka & Co. Advocates to enter appearance and prosecute the primary suit and Appeal herein. 10. On the foregoing, I do not agree with the Respondent that the deponent Ibrahim Omar is a stranger to the matter and that he has failed to disclose his relationship with the Applicant. Ibrahim Omar has disclosed that he is the operations manager of the Applicant/Appellant well conversant with the issues relating to this suit, hence competent to swear the supporting affidavit. 11. I wish to point out that, I have also looked at the Replying affidavit herein, and I note that the same is deponed by Rosemary Mule Mwangangi the Respondent herein but the same is executed and sworn by Felista Syokau Wanza on 14th February 2025. Clearly, it is the Respondent’s Replying Affidavit that is incompetent and defective for having been deponed by one person and executed by another different person. It has not been shown whether Rosemary Mule Mwangangi and Felista Syokau Wanza are one and the same person. 12. The foregoing notwithstanding I will proceed to determine the second framed issue. b. Whether the Applicant/Appellant has met the criteria for grant of orders of stay pending Appeal. 13. The law relating to stay pending Appeal is Order 42 Rule 6 (2). It is also important to state that the power to grant an order of stay is discretionary and is dependent on certain conditions being met. 14. Order 42 rule 6(1) and (2) of the Civil Procedure Rules,2010 provides as follows: 15. “ (1) No appeal or second appeal shall operate as a stay of execution or proceeding under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside. (2) No order for stay of execution shall be made under subrule (1) unless – (a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and (b) 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.” In Vishram Ravji Halai vs. Thornton & Turpin Civil Application No. Nai. 15 of 1990 [1990] KLR 365, the Court of Appeal held that whereas the Court of Appeal’s power to grant a stay pending appeal https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14405/eng@2025-07-29 3

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is unfettered, the High Court’s jurisdiction to do so under Order 41 rule 6 of the Civil Procedure Rules is fettered by three conditions namely: i. establishment of a sufficient cause, ii. satisfaction of substantial loss and iii. the furnishing of security. 16. Further the application must be made without unreasonable delay. 17. To the foregoing, Justice Odunga in Michael Ntouthi Mitheu v Abraham Kivondo Musau [2021] eKLR held that: “ I would add that the stay may only be granted for sufficient cause and that the Court in deciding whether or not to grant the stay and that in light of the overriding objective stipulated in sections 1A and 1B of the Civil Procedure Act, the Court is no longer limited to the foregoing provisions. The courts are now enjoined to give effect to the overriding objective in the exercise of its powers under the Civil Procedure Act or in the interpretation of any of its provisions. According to Section 1A (2) of the Civil Procedure Act: “the Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective.” 18. Under Section 1B some of the aims of the said objective are; the just determination of the proceedings; the efficient disposal of the business of the Court; the efficient use of the available judicial and administrative resources; and the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties. 19. In Stephen Boro Gitiha vs. Family Finance Building Society & 3 Others Civil Application No. Nai. 263 of 2009, Nyamu, JA on 20/11/09 held inter alia that the overriding objective overshadows all technicalities, precedents, rules and actions which are in conflict with it and whatever is in conflict with it must give way. 20. The same Judge in Kenya Commercial Bank Limited vs. Kenya Planters Co-operative Union Civil Application No. Nai. 85 of 2010 held that: “ where there is a conflict between the statute (overriding objective principle) and a subsidiary legislation (rules of the court) the statute must prevail. Although the rules have their value and shall continue to apply subject to being O2 complaint, the O2 principle is not there to fulfil them but to supplement them where they prove to be a hindrance to the O2 principle or attainment of justice and fairness in the circumstances of each case.” 21. It therefore follows that all the pre-Overriding Objective decisions must now be looked at in the light of the said provisions. This does not necessarily imply that all precedents are ignored but that the same must be interpreted in a manner that gives effect to the said objective. What is expected of the Court is to ensure that the aims and intendment of the overriding objective as stipulated in section 1A as read with section 1B of the Civil Procedure Act are attained. It is therefore important that the Court takes into consideration the likely effect of granting the stay on the proceedings in question. In other words, the Court ought to weigh the likely consequences of granting the stay or not doing so and lean towards a determination which is unlikely to lead to an undesirable or absurd outcome. What the Court ought to do when confronted with such circumstances is to consider the twin overriding principles of proportionality and equality of arms which are aimed at placing the parties before the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14405/eng@2025-07-29 4

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Court on equal footing and see where the scales of justice lie considering the fact that it is the business of the court, so far as possible, to secure that any transitional motions before the Court do not render nugatory the ultimate end of justice. 22. The Court, in exercising its discretion, should therefore always opt for the lower rather than the higher risk of injustice. 23. In Butt Vs. Rent Restriction Tribunal [1979], the Court of Appeal gave pointers on what ought to be considered in determining whether to grant or refuse stay of execution pending appeal. The court stated thus: i. The power of the court to grant or refuse an application for a stay of execution is a discretionary, and the discretion should be exercised in such a way as not to prevent an Appeal. ii. The general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an Appeal may not be rendered nugatory should the Appeal court reverse the judge’s discretion. iii. Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the Applicant at the end of the proceedings. iv. Finally, the court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances of the case and its unique requirements. 24. On the first criterion as set out in Order 42 Rule 6 (2) i.e. Whether Applicant/Appellant has brought this application without unreasonable delay. 25. The question of unreasonable delay was dealt with in the case of Mohsen Ali & another v Priscillah Boit& another E&L NO. 200 OF 2012[2014] eKLR where it was stated: “ What is unreasonable delay is dependent on the surrounding circumstances of each case. Even one day after judgment could be unreasonable delay depending on the judgment of the court and any order given thereafter.” 26. However, the Court in MMW v JWW & 2 others [2021] eKLR in determining whether an application for stay had been filed in good time, ruled as follows; “ The judgment herein was delivered on 28th October 2019. The applicant filed his Memorandum of Appeal on 14th November 2019 and the application herein for stay on 15th November 2019. I am of the opinion that the application has been filed timeously 27. The Judgement was delivered on 4th December, 2024. The Memorandum of Appeal was filed on 24th December 2024. The trial court had granted the Applicant 30 days stay of execution which lapsed resulting to filing of the instant application dated 21st January 2025 and filed in court on 22nd January 2025. In the circumstances, I find that application has been brought without unreasonable delay. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14405/eng@2025-07-29 5

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28. The second criterion is whether the Applicant/Appellant has demonstrated that he is bound to suffer substantial loss if orders of stay of execution are not granted. The question that follows is what comprises substantial loss. In Silverstein Vs Chesoni (2002)1 KLR 867 it was held that “ The issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the Appeal nugatory” 29. The Appellant/Applicant has deposed that he stands to suffer loss if orders sought are not granted. Judgment was entered in favour of the Respondent, who may execute against the Applicant. If the orders sought are not granted, the Intended Appeal will be rendered nugatory, and the Applicant will stand prejudiced and suffer substantial loss while the Respondent will be unjustly enriched. 30. That the order for stay is desirable so that the Appellant/Applicant may have their appeal heard in Court. If the decretal sum is released to the Respondent and the subsequent appeal allowed, where the financial capability of the Respondent is unknown then the applicant stands to suffer loss. 31. The court is under a duty to hold the rings of justice even handed; it should not offer any illegitimate advantage to either party. The Appellant/Applicant appeals to this Honourable Court to maintain the status quo as has been to enable the Applicant an opportunity to be heard on his Appeal. The Applicant submits that; Firstly, the law on the grant of stay of execution under Oder 42 Rule 6 of the Civil Procedure Rules (2010) was settled in the case of Charles Kariuki Njuri v Francis Kimaru Rwara (suing as Administrator of Estate of Rwara Kimaru alias Benson Rwara Kimaru (Deceased) [2020] eKLR where the court held that the purpose of the application for stay of execution pending appeal is to preserve the subject matter in dispute so that the right of the appellant who is exercising his undoubted right of appeal are safeguarded and the appeal if successful is not rendered nugatory. 32. Similarly, Justice Gikonyo in the case of James Wangalwa & Another V Agnes Naliaka Misc Application No. 42 of 2011 (2012) stated that; “ ...the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.” 33. The Appellant therefore calls upon this Court to make an order for staying execution pending the hearing of the Appeal, failure to which the Respondent shall without a doubt proceed to execute against the Appellant and auction the Appellant’s property to the great loss and suffering of the Appellant. 34. The Appellant also places reliance on the casein National Water Conservation & Pipeline Corporation -vs- Ngatunyi Enterprises Limited [2016] eKLR, where it was held that, for money decrees, substantial loss existed if a decree is executed and the Respondents fail to return the funds in the event that the appeal succeeds. 35. That the trial Court held the Appellant liable and made an award of Kshs.11,791,442/= together with costs and interests of the suit which the Respondent tabulates as Kshs.544,791/= which total to Kshs.12,336,233/= in favor of the Respondent. This particular judgment was delivered in favor of the Respondent devoid of adducing any evidence to the effect that the deceased was earning the pleaded amount. A question therefore arises as to whether the Respondent successfully discharged his evidentiary burden of proving that the Appellant was liable for the accident and proving the earnings https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14405/eng@2025-07-29 6

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of the deceased which were a substantial basis for the award on quantum among the other awards on quantum. 36. It is the Appellants submission that the same will be demonstrated on appeal that the evidentiary burden was not discharged in the trial court and the trial court’s finding was not in line with the evidence adduced, additionally, the trial court not giving any reason for its finding. 37. In the Replying Affidavit to the application, the Respondent deponed that even if the Appellant/ Applicant has preferred an Appeal, which it presumes has chances of success, the same cannot to be presumed to be a basis for issuance of an automatic stay of execution especially when the Judgment Debtor has not paid a dime towards settlement of a valid Judgment that has not been set aside. The fact that the process of execution is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, which is not the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the Civil Procedure Rules. Further, the fact that the Appellants/Applicant is of the opinion that an award is excessive does not in any way demonstrate substantial loss. It is incumbent upon the Appellant/Applicant to demonstrate the substantial loss by way of placing material evidence before the court for consideration which it has not done and this is especially so because execution is a lawful process. 38. The Respondent contends that there is no risk of execution and further any intended execution that may ensue will be for the reason that the Appellant/Applicant has never taken any steps to pay the decretal sum herein despite being aware of the same and as such, they have come to this court with unclean hands and do not deserve the Orders prayed for. 39. In addition, the Respondent states that the Appellant/Applicant herein has been given ample time from the date of the judgment to settle the decretal amount but they have not taken any steps to indulge his advocates on any form of settlement and or payment plan only to file this Application now when there is no threat of execution. The Respondent’s position is that the application herein lacks merit as the Appellant/Applicant has not shown any substantial loss he may suffer if he pays the decretal sum and thus this application is incompetent and an abuse of the court process and is only aimed at curtailing the Respondent’s rights in terms of enjoying the fruits of her judgement. 40. The Respondent prays that the application should be dismissed and in the unlikely event that the same is allowed, then the Applicant should be compelled pay her half of the decretal amount being Kshs.6,168,116.50/= as per the tabulation dated 14/01/2025 which was served upon the Applicant and has not been contested and the balance thereof be deposited in an interest earning account in the joint names of the advocates on record within 14 days from the date of the court order 41. The third criterion is that the Applicants/Appellants must furnish security for the due performance of the decree. I am fully aware that the court has a delicate task of balancing the interests of both the Appellant and the Respondent. The Appellant who seeks to preserve the status quo pending the hearing of the Appeal so that his Appeal is not rendered nugatory and the interest of the Respondent who is seeking to enjoy the fruits of his judgement. It is true that under Order 42 rule 6 aforesaid, the Applicant is required to offer security for the due performance of the decree and the Court is entitled to take into account the fact that no such security has been offered in deciding an application thereunder. I agree with the position in Mwaura Karuga t/a Limit Enterprises vs. Kenya Bus Services Ltd & 4 Others [2015] eKLR, where it was held that: “ … the security must be one which shall achieve due performance of the decree which might ultimately be binding on the applicant. The rule does not, therefore, envisage just any https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14405/eng@2025-07-29 7

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security. The words ‘’ultimately be binding’ are deliberately used and are useful here, for they refer to the entire decree as will be payable at the time the appeal is lost. That is the presumption of law here. Therefore, the ultimate decree envisaged under order 42 rule 6 (2) (b) of the Civil Procedure Rules includes costs and interest on the judgment sum unless the latter two were not granted-which is seldom. The security to be given is measured on that yardstick.” 42. I also associate myself with the holding in Gianfranco Manenthi & another vs. Africa Merchant Assurance Company Ltd [2019] eKLR, where the court observed: “ … the applicant must show and meet the condition of payment of security for due performance of the decree. Under this condition a party who seeks the right of appeal from money decree of the lower court for an order of stay must satisfy this condition on security. In this regard, the security for due performance of the decree under order 42 rule 6(1) of the Civil Procedure Rules, it is trite that the winner of litigation should not be denied the opportunity to execute the degree in order to enjoy the fruits of his judgment in case the appeal fails. Further, order 42 should be seen from the point of view that a debt is already owed and due for payment to the successful litigant in a litigation before a court which has delivered the matter in his favour. This is therefore to provide a situation for the court that if the appellant fails to succeed on appeal there could be no return to status quo on the part of the plaintiff to initiate execution proceedings where the judgement involves a money decree. The court would order for the release of the deposited decretal amount to the respondent in the appeal … This the objective of the legal provisions on security was never intended to fetter the right of appeal. It was also put in place to ensure that courts do not assist litigants to delay execution of decrees through filing vexatious and frivolous appeals. In any event, the issue of deposit of security for due performance of decree is not a matter of willingness by the applicant but for the court to determine.” 43. The law is that where the applicant intends to exercise its undoubted right of appeal, and in the event, it were eventually to succeed it should not be faced with a situation in which it would find itself unable to get back its money. Likewise, the Respondent who has a decree in his favour should not, if the applicant were eventually to be unsuccessful in its intended appeal, find it difficult or impossible to realize the decree. This is the cornerstone of the requirement for security. The issue of adequacy of security was dealt with by the Court of Appeal in Nduhiu Gitahi vs. Warugongo [1988] KLR 621; 1 KAR 100; [1988-92] 2 KAR 100 where the Court of Appeal expressed itself as follows: “ The process of giving security is one, which arises constantly. So long as the opposite party can be adequately protected, it is right and proper that security should be given in a way, which is least disadvantageous to the party giving the security. It may take many forms. Bank guarantee and payment into court are but two of them. So long as it is adequate, then the form of it is a matter, which is immaterial. In an application for stay pending appeal the court is faced with a situation where judgement has been given. It is subject to appeal. It may be affirmed or it may be set aside. The court is concerned with preserving the rights of both parties pending that appeal. It is not the function of the court to disadvantage the defendant while giving no legitimate advantage to the plaintiffs. It is the duty of the court to hold the ring even-handedly without prejudicing the issue pending the appeal. For that purpose, it matters not whether the plaintiffs are secured in one way rather than another. It would be easier for the defendants or if for any reason they would prefer to provide security by a bank https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14405/eng@2025-07-29 8

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guarantee rather than cash. There is absolutely no reason in principle why they should not do so. The aim of the court in this case was to make sure, in an even-handed manner, that the appeal would not be prejudiced and that the decretal sum would be available if required. The respondent is not entitled, for instance, to make life difficult for the applicant, so as to tempt him into settling the appeal. Nor will either party lose if the sum is actually paid with interest at court rates. Indeed, in this case there is less need to protect the defendant because nearly half the sum will have been paid and the balance was at one stage open to negotiation to reduce it”. 44. The Applicant has submitted that it is ready and willing to comply with the orders on security as may be given by this court and simply asks this court to take consideration of the high amount of quantum awarded and the interest of the Appellant. That in the event that the court exercises its discretion and orders for depositing of security, the same may not be too high so as to prejudice the Appellant whose reliance on prosecution of the suit is on its insurer. 45. In the application, the Appellant indicated that his underwriter was ready, able and willing to give a Bank guarantee from Family Bank as security for the entire judgment sum pending hearing and determination of this Application and the Appeal herein. I have read through the said Bank Guarantee dated6th July 2023 which was for a duration of 12 months with an option of renewal. Clearly, the said Guarantee expired on 6th July 2024. There is no proof that the Applicant renewed the same. Nothing has been said in the Applicant’s submissions concerning the same. 46. In Re Estate of John Ndungu Mubia (Deceased)(2021) eKLR placed reliance on the case of Arun C Sharma v Ashana Raikundalia & Co. Advocates where Justice Gikonyo stated that :“ The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. It is not to punish the judgment debtor.......... Civil process is quite different because in civil process the judgment is like a debt hence the applicants become and are judgment debtors in relation to the respondent. That is why any security given under Order 42 rule 6 of the Civil Procedure Rules acts as security for due performance of such decree or order as may ultimately be binding on the applicants. I presume the security must be one which can serve that purpose." 47. The issue of security is discretionary and it is upon the Court to determine the same as was stated in the case of Focin Motorcycle C. Ltd vs Ann Wambui Wangui [2018] eKLR where it stated that:“ Where the applicant proposes to provide security as the Applicant has done, it is a mark of good faith that the application for stay is not just meant to deny the respondent the fruits of judgment. My view is that it is sufficient for the applicant to state that he is ready to provide security or to propose the kind of security but it is the discretion of the court to determine the security…” 48. In the end, the I find that by agreeing to comply with with the orders on security as may be given by this court, the Applicant has shown a mark of good faith that the application for stay is not meant to deny the Respondent the fruits of his judgment. 49. Taking all the above factors into account and in order not to render the intended appeal nugatory as well as to give effect to the overriding objective of the Civil Procedure Act, I find and hold that the Appellant/Applicant has fulfilled the requirements for grant of stay of execution pending appeal as stipulated under Order 42 Rule 6 of the Civil Procedure Rules. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14405/eng@2025-07-29 9

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50. 51. Accordingly, I hereby allow the Appellant/Applicant’s application dated 21/01/2025 and grant stay of execution of the Judgment issued by Hon. Benson Khapoya in Kithimani MCCC 145 of 2024 dated and delivered on 4th December 2024 pending the hearing and determination of the appeal on the following conditions: a. The Appellant/ Applicant shall deposit half the decretal sum into an interest earning account in a reputable commercial Bank, to be held by both advocates for the Parties to this appeal or in the alternative deposit the same in court within 45 days of this ruling and in default execution to issue. b. The Appellant to file and serve a record of appeal within Forty-Five (45) days of this ruling; c. Costs shall be in the appeal; d. The appeal to be mentioned on a date to be given by the court to confirm compliance with the orders issued hereinabove and for further directions on the disposal of the appeal. It is so ordered. RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 29TH JULY 2025 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 29TH JULY 2025 In the presence of: Ms. Muema for Applicant/Appellant Mr. Kyalo for Fred Muia for Respondent Milly....... Court Assistant 9 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14405/eng@2025-07-29 10

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