[2022] KEHC 3083 (KLR)

Africa Merchant Assuarnce Co. Ltd v Mama Rael Memorial Foundation (Suing Through Its Registered Trustees) (Civil Appeal 324 of 2019) [2022] KEHC 3083 (KLR) (Civ) (17 June 2022) (Ruling)

Neutral citation: [2022] KEHC 3083 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 324 of 2019

DO Chepkwony, J

June 17, 2022

Between

Africa Merchant Assuarnce Co. Ltd

Applicant

and

Mama Rael Memorial Foundation (Suing Through Its Registered Trustees)

Respondent

Ruling

1. Before court is the Applicants Notice of Motion application dated 31st January, 2021 which seeks the following ORDERS:1. Spent;2. That Messers Kihima & Koech Advocates be granted leave to file this appeal out of time;3. That Messers Kihima & Koech Advocates be granted leave to come on record for the Appellants/Applicants herein in place of Messers Ong’anda & Associates Advocates;4. That consequent to prayer 2 above, the Honourable court be pleased to order that the Memorandum of Appeal filed herewith to be deemed to have been properly filed.5. That the Honourable Court be pleased to order a stay of execution of the Ruling in Nairobi Chief Magistrate Civil Case No.8566 of 2018 and all other orders consequential therefrom pending the hearing and determination of this application interpartes;6. That the Honourable Court be pleased to order a stay of the garnishee proceedings filed on 20th January, 2022 in Nairobi Chief Magistrate Civil Case No.8566 of 2018 and all other orders consequential therefrom pending the hearing and determination of the intended appeal;7. That the costs of this application be provided for.

2. The application is premised on the grounds on the face of it and further supported by the annexed Affidavit of Grace Njuguna sworn on 31st January, 2022.

3. The Applicant set out grounds that a Ruling was entered in favour of the Respondent on 23rd May, 2019 for a sum of Kshs.19,000,000/=. The Appellants/Applicants are dissatisfied with the Ruling and wish to change Advocates by appointing Messers Kihima & Koech Advocates for purposes of conducting the Appeal. The Appellants are constrained to file a Memorandum of Appeal through the new Firm of Advocates given that the prescribed appeal period lapsed. That, should the stay not be granted, the Appellant stands to suffer substantial loss if execution issue for the entire amount on the Ruling. The Applicants have an arguable appeal with high chances of success and finally no prejudice will be suffered should the application be allowed.

4. Before the application was heard and determined, the Appellant filed another application dated 15th February, 2022 on even date. The applicant sought the following orders:-1. Spent;2. That the Honourable Court be pleased to vary the orders herein issued on 2nd February 2022 and order that there be a temporary stay of execution and an earlier hearing date;3. That pending the appeal, the Honourable Court be pleased to issue a stay of execution given by the lower court;4. That the costs of this application be provided for.

5. The application is supported by several grounds and further by the annexed Supporting Affidavit of Grace Njuguna. The Applicant states that by an Order made on 2nd February, 2022, the Appellant was directed to serve the Respondent and that the application would be heard on 14th March, 2022 without a temporary stay pending appeal. That the 15 days expire on 22nd February, 2022 and infact the Respondent has already issued instructions to Auctioneers to proceed with execution. That unless the order is reviewed/varied, the Respondent will have effectively defeated the stay orders in a bid to derive a benefit from her own misdeeds.

Respondent’s Response 6. In opposition to the application, the Respondent filed Grounds of Opposition dated 31st January, 2022 stating the following grounds;1. The application does not lie, is incompetent, superfluous, fatally defective, misconceived, lacks merits and tantamount to abuse of the court to abuse of the court process.2. The Applicant has abused the court process by filing multiple applications and failing to comply with multiple court orders herein. We humbly request the Honourable Court to peruse its rulings herein dated 5th of December, 2019 by Hon. Mbogholi and Ruling dated 8th October, 2021 by Hon. Lady Justice Ong’udi which rulings settle the issues in this application.3. The Applicant cannot stop the Respondent from executing the decree after failing to comply with stay orders or to pay the decretal amount now at 19million. It has never filed any appeal against this Honourable Court’s rulings in the Court of Appeal. The applicant cannot appeal on behalf of the garnishee hereof. Simply put, the Judgment-debtor cannot wear the garnishee’s pair of its trousers.4. The Applicant cannot appeal against the orders issued compelling Access Bank, Garnishee which is represented by the Firm of M/S Cheboryot & Co. Advocates in the lower court.5. The Applicant has deliberately omitted the Garnishee from this application and who is a relevant party hereof. The Applicant and the Garnishee are distinct parties pursuant to the provisions of Order 23 Rules 1 and 2 and Order 22 Rule 35 of the Civil Procedure Rules.6. The Applicant is concealing material facts. On 7th December, 2021, the subordinate court issued Garnishee Order Nisi against Access Bank PLC. On 23rd February, 2022 the Garnishee supplied an outrageous bank statement of the Applicant indicating nil bank balances .7. This Honourable Court has no jurisdiction to determine same issues that have been canvassed, heard and decided by this Honourable Court. This court has no jurisdiction to reopen a dispute that it has judiciously heard and determined. Further, this court has no jurisdiction to entertain a matter or matters that are pending before Court of Appeal pursuant to Notices of Appeal. It cannot hear any application by a non-party after the Judgment hereof.8. We humbly entertain doubts that this Honourable Court can exercise its authority and discretion in favour of the Applicant. Equally, we opine that this matter was closed as far as stay is concerned upon delivery of Judgment and dismissal of its multiple stay applications. The doors were shut to entertain similar applications herein.9. The Applicant has not complied with the lower court orders. This Honourable Court has jurisdiction to summarily deny the Applicant audience or punish him for contempt by dint of Section 5 of the Judicature Act.10. The Applicant appealed against the Judgment of the lower court and immediately applied for stay. The Applicant failed to comply with multiple orders of this court on condition for stay. It is thus a contemnor.11. The Applicant’s advocates and the Respondent’s advocates have been consistently in court attendances during the hearing and fixing of the Judgment date hereof. The Applicant has failed to pay the decretal amount yet the decretal amount is attracting interest.12. We persuade this Honourable Court to dismiss the application dated 31st January, 2022.

Analysis and Determination 7. I have considered the application before court, the response thereto by way of Grounds of Objection and the oral submissions by the parties during the hearing of the application.

8. The Applicant, among other orders, has sought for leave to file an appeal out of time. The statutory basis on Appeals from a subordinate court is anchored on Section 75G of the Civil Procedure Act which provides that:-“79G. Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order.Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.”

9. It is not in dispute that the Ruling in the lower court which the Applicant wishes to appeal against was rendered on 23rd May, 2019 and the application for determination was filed on 31st January, 2022 which was beyond the requirement of 30 days as provided for under Section 79G of the Civil Procedure Act. Counsel for the Applicant has not given any substantive explanation for the delay in bringing the application. The only thing discerned from the pleadings is that counsel is just coming on record. In the absence of a proper explanation, this court’s hands are tied from exercising its discretion. This court notes that there has been inordinate delay in bringing this application and the Respondent who is a successful party should not be denied the opportunity to enjoy the fruits of its Judgment.

10. On the question of leave to come on record by an advocate, the same is provided for under Order 9 Rule 9 of the Civil Procedure Rules, 2010provides as follows:“When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the court—a.upon an application with notice to all the parties; orb.upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be.”

11. Despite the requirement of the law as stated, there is no evidence on the court record that the Firm of M/S Ong’anda & Associates was served with the application before court. In the absence of an affidavit of service this Honourable Court is not in a position to tell whether the said firm was indeed served.

12. Now turning to the issue of stay pending appeal, this Honourable Court is guided by the provisions of Order 42 Rule 6(1) and (2) of the Civil Procedure Rules, which lays down the principles guiding the grant of stay of execution pending appeal. The said order provides as follows:1. No appeal or second appeal shall operate as a stay of execution or proceedings 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; andb.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.

13. Flowing from the above provision, there are several conditions which must be met before any order of stay is issued. These conditions include; a party demonstrates substantial loss to be suffered, application has been brought without unreasonable delay and provide security for due performance of decree or order which must be proved by the Applicant.

14. The Applicant has submitted that should the stay orders not granted, the Applicant stands to suffer substantial loss if execution proceed. Further, they stated that the Applicant has an arguable appeal with high chances of success. The Applicant need not prove an arguable appeal or one that has high chances of success.

15. It is the duty of this court to exercise its discretion whether to grant stay or not once the requirements for granting the same are met. The principles for granting stay were outlined by the Court of Appeal in the case of Butt v Rent Restriction Tribunal [1979]eKLR, as follows;-i.The power of the court to grant or refuse an application for a stay of execution is a discretionary power. 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 that appeal court reverse the Judge’s discretion.iii.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.The court in exercising its discretion whether to grant or refuse an application for say will consider the special circumstances of the case and its unique requirement.”

16. The Applicant must establish and prove with evidence before this court that once stay of execution is not granted substantial loss will occur. This position was taken in the case of Antoine Ndiaye v African Virtual University[2015]eKLR, where the court held that;“The onus of proving substantial loss and in effect that the respondent cannot repay the decretal sum if the appeal is successful lies with the applicant; it follows after the long age legal adage that he who alleges must proof. Real and cogent evidence must be placed before the court to show that the Respondent is not able to refund the decretal sum should the appeal succeed.”

17. The position of this court is that the purpose of an application for stay of execution pending an appeal is to preserve the subject matter of the suit so that the rights of the Applicant who is exercising the right of appeal is safeguarded and the appeal, if successful is not rendered nugatory.

18. This court is guided by the case ofJames Wangalwa & another v Agnes Naliaka Cheseto [2012]eKLR, where it was held that:-“No doubt, in law, the fact that the process of execution has been put in motion, or 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, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal ... 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.”

19. Regarding the issue of inordinate delay, the Applicant has not tried to explain the reason why the application was not brought within a reasonable time but has just indicated that the firm is just coming on record in the matter. It is noteworthy that the Applicant was being represented previously by another firm of advocates and therefore the question of the advocates being new does not hold water as the previous advocates are shown to have actively participated in the matter.

20. It should be noted that any party has a right to choose advocates of their choice to represent them but the same should not be used as a toll to prejudice the successful party from reaping the benefits of their Judgement, as I believe in the case herein.

21. It is also clears the Applicant has not met the requirements under Order 42 rule 6 aforementioned requiring the Applicant to provide security for the due performance of the decree. It has been submitted by the Respondent that the Applicant has made several applications seeking for the same orders as the current application. The said applications were heard and determined and the Applicant was given a conditional stay which it has not complied with upto date. For that reason, the Applicant does not deserve audience of this Honourable Court.

22. Upon perusal of the court record, I note that the Applicant filed an application dated 14th June, 2019 and another on 17th June, 2019. A Ruling was delivered on 5th December, 2019. Another application is dated 5th July, 2021 in which this Honourable Court delivered its Ruling on 8th October, 2021. Following the various applications filed by the Applicant seeking stay of execution, it is clear that the question of stay has been deeply litigated on this matter and this court cannot make any other orders regarding the same.

23. The upshot, is that taking into consideration all the relevant factors, I am not satisfied that the Applicant has made out a case requiring the grant of the orders sought. For that reason, I proceed to dismiss the application dated 31st January, 2022 with costs.

Orders accordingly.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 17THDAY OF JUNE, 2022D. O. CHEPKWONYJUDGEIn the presence of:Mr. Nyagah counsel holding brief Mr. Kurauka counsel for the RespondentNo appearance for the ApplicantCourt Assistant - Kevin