[2022] KEHC 10104 (KLR)

Andiwo v Safaricom PLC & 15 others (Civil Suit E005 of 2020) [2022] KEHC 10104 (KLR) (8 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10104 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Suit E005 of 2020

TM Matheka, J

July 8, 2022

Between

Simion Ogada Andiwo

Plaintiff

and

Safaricom PLC

1st Defendant

Siayat Bare Osman

2nd Defendant

Judy Kamunyu

3rd Defendant

Edwin Kipkemoi Cheruiyot

4th Defendant

Active Communication Ltd

5th Defendant

Jayden Communication Ltd

6th Defendant

John Karuga Kingori

7th Defendant

Susan Wanja Muchemi

8th Defendant

Jecinta Meringu

9th Defendant

Elijah Murage

10th Defendant

Patrick Wanjau

11th Defendant

Gladys Akoth

12th Defendant

Bethsheba Ogega

13th Defendant

Kennedy Omondi Mollow

14th Defendant

Selline Akoth Opondo

15th Defendant

John Waigwa

16th Defendant

Ruling

1. In a ruling delivered on 14th December 2021 this court made the following orders:i.The plaint is not incurably defective for want of a Verifying Affidavit. The “Supporting Affidavit” filed herein is rejected and expunged from the record and the plaintiff granted leave to file the appropriate affidavit within seven (7) days hereof.ii.This Court has jurisdiction to hear the applications by the parties herein and the Plaintiff’s Preliminary Objections be and are hereby dismissed.iii.The applications by the 1st, 2nd 3rd 5th, 6th, 7th 8th, 9th, 10th, 11th and 15th that the Plaint does not disclose reasonable cause of action against each of them be and is hereby allowed and the 1st, 2nd 3rd 5th, 6th, 7th 8th, 9th, 10th, 11th and 15th defendants struck off the Plaint with costs to the said defendants.iv.The Application by the 10th defendant seeking that the plaintiff do deposit security for costs is not merited and is hereby dismissed with costs to the plaintiff.v.The plaintiff is at liberty to amend his Plaint within thirty (30) days hereof.vi.Right of Appeal within thirty (30) days.

2. By a Notice of Motion dated 31st January 2022, the Plaintiff Simion Ogada Andiwo now applicant sought the following orders:-1. Spent;2. THAT stay orders be and is hereby issued against the ruling given on 14th December, 2021 pending intended appeal from the said Ruling.3. THAT costs of this Application be in the cause.

3. The Application is premised on the grounds that:-1. The Applicant is liable in the order for costs subject of intended appeal.2. Unless stayed the defendants may execute for the costs and render the appeal nugatory.3. The appeal has tremendous prospects of success against the order for costs.4. The court track record bears witness.5. The applicant has already on 20. 12. 2021 lodged notice of appeal from the Ruling on 14. 12. 2021.

4. The Application is supported by the affidavit sworn by the applicant on 1st February, 2022.

5. The Application is opposed by the defendants.

6. The 1st, 2nd ,3rd, 4th ,8th ,9th,11th and 15th Defendants through their Grounds of Opposition dated 15th March 2022 opposed the application on grounds that:-1. The order dismissing the Plaintiff’s suit against the 1st, 2nd, 3rd, 4th, 8th, 9th, 11th, and 15th Defendants is a negative order incapable of execution.2. The Application is premature as no bill of costs has been filed.3. The Application is an abuse of the court process.

7. The 5th and 7th defendants/respondents equally opposed the application through their grounds of opposition dated 21st April 2022 on the following grounds: -1. THAT the Application is immature as no bill of costs has been filed.2. THAT the Applicant has not met the conditions outlined under order 42 Rule 26 of the Civil Procedure to warrant an award of stay of execution.3. THAT the Application is fatally defective, unsustainable, lacks merit and an abuse of the court process hence should be dismissed with costs to the 5th and 7th defendants.

8. The 10th Respondent similarly opposed the Application through Grounds of Opposition dated 23rd March 2022 on grounds:-.1. That the ruling made by this court on 14. 12. 2021 is a negative order incapable of forming a basis for stay of execution.2. hat a stay against payment of costs is not available for a suit that has suffered a dismissal.3. That the applicant has failed to satisfy the conditions set out in order 42 rule 26of the civil procedure rules to warrant stay of execution4. That the application dated 01/02/2022, ought to be dismissed with costs to the 10th Defendant for being incompetent, fatally and incurably defective, misconceived, unsustainable, bad in law, lacking in merit, frivolous, vexatious, and otherwise an abuse of the court process.

9. The Applicant filed a Replying Affidavit to the 10th defendant’s Grounds of Opposition on 12th April, 2022.

10. He deponed that the said Grounds of Opposition are invalid and incompetent as they are in response to an application dated 1st of February 2022 which is non-existent and that Order 42 Rule 26 quoted by the 10th defendant/respondent is inapplicable in this matter.

11. It was also the Applicant’s deposition that the Grounds of Opposition as drawn offends Section 34(1) and 35(1) of the Advocates Act as it does not exhibit the name and signature of the 10th Respondent and therefore it should be struck out from the record.

12. The parties canvassed the Application through Written Submissions.

Applicant’s Submissions 13. The Applicant filed two sets of Submissions one dated 30th April 2022 while the other is dated on 9th May, 2022.

14. He submitted that the Ruling delivered on 14th December,2021 is enforceable under Order 22 rule 18-23 of the Civil Procedure Rules and that orders of stay is categorically meant to stay any taxation of any Bills of Costs which the defendants/respondents are at liberty to file and tax.

15. He averred that this Honorable Court has jurisdiction, discretion and duty to grant and issue stay orders for ends of justice and equity since the application has prima facie met the basic threshold for grant of the same.

16. The applicant further submitted that his application is filed without any tinge of delay as he lodged the Record of Appeal on 4th April, 2022.

17. It was also his submissions the Application is unopposed because the Grounds of Oppositions on record by the 1, 2nd, 3rd, 4th, 5th, 7th, 8th, 9th, 10th, 11th &15th defendants/respondents and submissions dated 4th April 2022 are in breach of section 22, 34(i), 35(i) & 55 of the Advocates Act and Section 107-120 of the Evidence Act for failure to exhibit or disclose the name and signature of its author. He relied on the case of Travel Shoppe Ltd vs Indigo Garments EPZ Ltd & 2 others [2004] eKLR in which the plaintiff’s counsel while urging the court to find that the debenture was void and in contravention of Sections 34 and 35 of the Advocates Act for failure to show who drew it relied on the case of Obura v Koome (K) Ltd v Barclays Bank of Kenya Ltd & Others (2001) LLR 1381 (CCK). where it was held:-“That decision of the court of appeal held that a document drawn in breach of the provisions of section 34 of the Advocates Act was null and void. Now although that decision is strictly one on the interpretation it would appear to me that the broad logic of it is that a document prepared otherwise than in compliance with the Advocates Act is invalid.”

18. The Applicant thus urged this court to strike out the Grounds of Oppositions on record and allow his application.

The 1st, 2nd, 3rd, 4th, 8th, 9th, 11th, &15th Respondents’ Submissions 19. The Advocate for the respondents herein submitted that the Applicant has not demonstrated sufficient grounds to warrant grant of stay of execution pending appeal. He argued that the power of the court to grant stay of execution pending appeal is discretionary. For this proposition reliance was placed on the case of Nation Media Group Limited v Faith Muthoni Njiru [2021] eKLR which the court quoted the persuasive decision, in the case of Loice Khachendi Onyango v Alex Inyangu & another [2017] eKLR where it was held that;“The relief is discretionary but the discretion must be exercised judiciously and upon defined principles of law; not capriciously or whimsically. Therefore, stay of execution should only be granted where sufficient cause has been shown by the Applicant. In determining whether sufficient cause has been shown, the Court should be guided by the three pre-requisites provided under Order 42 Rule 6 of the Civil Procedure Rules. Firstly, the Application must be brought without undue delay; secondly, the court will satisfy itself that substantial loss may result to the Applicants unless stay of execution is granted; and thirdly 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….”

20. The advocate further submitted that the applicant will suffer no prejudice if stay of execution pending appeal is not granted as there are no execution proceedings commenced against him.

21. It was his position that no Bill of Costs has been filed by any defendant who was awarded costs and it is only after the defendants have filed their bill of costs, and they are taxed, and a certificate of taxation issued that the Applicant can legitimately claim that there is risk of execution. He relied on the case of Republic v National Social Security Fund Exparte Kapi Limited [2021] eKLR where the court faced with similar situation stated as follows:-“..Having come to that conclusion, there is no reason for granting a stay of execution. In any event there is no order to be stayed except the order for costs. No Bill of Costs has been filed and taxed, and therefore nothing to stay...”

22. He thus submitted that this Application is premature and it should be dismissed.

23. The Advocates of the respondents herein contended that there has been inordinate delay in filing this application as it has been filed 52 days after the court delivered its Ruling.

24. He argued that the order dismissing the plaintiff’s suit was a negative order incapable of being stayed. To support this position the Counsel cited the case of Jennifer Akinyi Osodo v Boniface Okumu Osodo & 3 others [2021] eKLR where the court made the same findings. The court stated:-“..A cursory perusal of the record herein shows that the High Court vide its judgment dated 30th July 2020, merely dismissed the applicant’s case with costs to the respondents. The parties were not ordered to do anything or to refrain from doing anything. What was therefore issued by the High Court is in the nature of a negative order incapable of execution and as such there is nothing to stay...”

25. With regard to the Applicant’s contention that their Grounds of Opposition is incompetent as it does not disclose its author contrary to Section 35(1) of the Advocates Act, the Counsel submitted that respondents’ Grounds of Opposition disclose that it was drawn by the firm of Gikera & Vadgama Advocates whose physical, postal and email address have been indicated and thus compliant with section 35 of the Advocates Act.

26. They prayed the application to be dismissed with costs.

5th & 7th Defendants’/Respondents’ Written Submissions 27. The Respondents herein filed their submissions on 21st April, 2022.

28. They submitted that the only issue for determination is whether stay of execution is merited.

29. They argued that under Order 42 Rule 6(2) of the Civil Procedure Rules the applicant in order to be granted stay of execution must satisfy that substantial loss may result to him or her unless the order is made, the application has been made without unreasonable delay and provide security for the due performance of such decree or order as may ultimately be binding on him.

30. On what constitutes substantial loss reliance was placed on the case of Kenya Shell Limited vs Kibiru [1986]KLR 410 where it was held that;“It is usually a good rule to see if order XLI Rule 4 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss in its various forms is the corner stone of both jurisdictions for granting stay. That is what has to be prevented. Therefore, without this evidence it is difficult to see why the respondents should be kept of their money”

31. They thus submitted that the Applicant has not demonstrated or given evidence demonstrating any substantial loss to warrant grant of stay of execution pending appeal.

32. It was further their submissions that it would be necessary for this application to be made had the 5th and 7th defendants filed their Bill of Costs, taxed it and obtained a certificate of taxation. That this position is well explained in the case Republic v National Social Security Fund Exparte Kapi Limited(supra) where the court held that an order of stay of execution on costs cannot be granted where no bill of costs has been filed.

33. The respondents submitted that the above was similarly the reasoning in the case of Raymond M. Omboga v Austine Pyan Maranga Kisii HCCA No 15 of 2010 that a negative order is one that is incapable of execution and being stayed. The court stated as follows:-“The order dismissing the application is in the nature of a negative order and it is incapable of stay of execution of such order. That is not an order capable of being stayed because there’s nothing that the applicant stays in the situation he was in before coming to court and therefore the issues of substantial loss that he is likely to suffer and or the appeal being rendered nugatory does not arise….”

34. The respondents contended therefore that this application has been made in bad faith with an intention of denying them from enjoying the fruits of costs that was awarded by this court.

35. On whether the application has been made within a reasonable time, the respondents submitted that there is actual delay in filing of this application as it was filed 52 days after the court had delivered its ruling.

36. They prayed that this Application be dismissed with costs to them.

10th Defendant’s/Respondent’s Written Submissions 37. The Advocate for the 10th Respondent associated himself with the submissions of the 5th and 7th defendants. In addition he submitted that in the Grounds of Opposition by the respondent herein he meant to quote order 42 rule 6 and not order 42 Rule 26 and urged this court not to punish the 10th respondent for the mistake of counsel and contended that the applicant will not suffer any prejudice as a result.

38. He stated that Article 159(2) (d) of the Constitution obliges the court to administer justice without undue regard to procedural technicalities.

39. It was further his submissions that the Ground of Opposition dated 23rd March, 2022 by the 10th defendant/respondent is in compliance with section 35 of the Advocates Act.

Issues for Determination 40. The only issue that arises for determination is whether this court should grant stay of execution of the orders made on 14th February, 2021.

41. The applicable provision of law is Order 42 rule 6 of the Civil Procedure Rules 2010.

42. That Rule 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 sub-rule (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.’

43. Stay of execution pending appeal is a discretionary power bestowed upon the court by the law. The Court of Appeal in the case of Butt v Rent Restriction Tribunal {1982} KLR 417 gave guidance on how a court should exercise the said discretion and held that:“1. 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.2. 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.3. 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.4. The Court in exercising its discretion whether to grant [or] refuse an application for stay will consider the special circumstances of the case and unique requirements. The special circumstances in this case were that there was a large amount of rent in dispute and the appellant had an undoubted right of appeal.5. The Court in exercising its powers under Order XLI rule 4 (2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security for costs as ordered will cause the order for stay of execution to lapse.”

44. From the above provision, it is clear that the court must be satisfied that there is “sufficient cause” to grant stay of execution pending Appeal. In the instant case as rightly submitted by the respondents, execution process has not commenced as none of them has filed bill of costs, taxed it and obtained a certificate of costs. In the circumstances therefore there is nothing to stay and the Applicant will not be occasioned any substantial loss if stay of execution is not granted.

45. The Applicant has further not offered any security for the due performance of the decree or order in issue, as may ultimately be binding on him .He lodged an appeal against the ruling of this court delivered on 14th February, 2021 but filing of an appeal does not guarantee stay of execution of the court’s orders unless the Applicant fulfills or meets the conditions set out under Order 42 rule 6 of the Civil Procedure Rules.

46. For an order of stay of execution to succeed, there must be positive requirements therein which would or could be affected or tampered by the stay. In Western College of Arts and Applied Sciences v Oranga & Others [1976-80] 1 KLR, the Court of Appeal for East Africa stated in respect of stay of execution, stated as follows:“But what is there to be executed under the judgment, the subject of the intended appeal? The High Court has merely dismissed the suit with costs. Any execution can only be in respect of costs. In Wilson v Church the High Court had ordered the trustees of a church to make a payment out of that fund. In the instant case the High Court has not ordered any parties to do anything, or to refrain from doing anything, or to pay any sum. There is nothing arising out of the High Court Judgment for this Court, in and application for stay, it is so ordered”

47. In Co-operative Bank of Kenya Limited v Banking Insurance & Finance Union (Kenya) [2015] e KLR the Court of Appeal (Kantai J.A ) held as follows:‘An order for stay of execution [pending appeal] is ordinarily an interim order which seeks to delay the performance of positive obligations that are set out in a decree as a result of a Judgment. The delay of performance presupposes the existence of a situation to stay – called a “positive order” – either an order that has not been complied with or has partly been complied with. See, for this general proposition, the holding of the Court of Appeal of Uganda in Mugenyi & Co. Advocates v National Insurance Corporation (Civil Appeal No. 13 of 1984) where it was stated:‘…an order for stay of execution must be intended to serve a purpose ...’

48. In Kanwal Sarjit Singh Dhiman v Keshavji Juvraj Shah [2008] eKLR, the Court of Appeal, while dealing with a similar application for stay of a negative order, held as follows:“The 2nd prayer in the application is for stay (of execution) of the order of the superior court made on 18th December, 2006. The order of 18th December, 2006 merely dismissed the application for setting aside the judgment with costs. By the order, the superior court did not order any of the parties to do anything or refrain from doing anything or to pay any sum. It was thus, a negative order which is incapable of execution save in respect of costs only (see Western College of Arts & Applied Sciences v Oranga & Others [1976] KLR 63 at page 66 paragraph C).”

49. The same reasoning was applied in the case of Raymond M. Omboga v Austine Pyan Maranga (supra), that a negative order is one that is incapable of execution, and thus, incapable of being stayed. This is what the Court had to say on the matter:“The Order dismissing the application is in the nature of a negative order and is incapable of execution save, perhaps, for costs and such order is incapable of stay. Where there is no positive order made in favour of the respondent which is capable of execution, there can be no stay of execution of such an order … The applicant seeks to appeal against the order dismissing his application. This is not an order capable of being stayed because there is nothing that the applicant has lost. The refusal simply means that the applicant stays in the situation he was in before coming to court and therefore the issues of substantial loss that he is likely to suffer and or the appeal being rendered nugatory does not arise…”

50. A keen consideration of the orders set out at the beginning of this ruling throws up the question: what is there for staying? If anything it is the applicant who was given orders to do specific things to salvage his suit. It is him who has not complied with orders of the court to do certain things. With respect to the Respondents, the only thing would have been a bill of costs but none has been filed, and there is therefore nothing to stay.

51. It is therefore evident that the Application is devoid of merit and it is dismissed with costs to the Respondents.

DATED, SIGNED AND DELIVERED VIA EMAIL THIS 8TH DAY OF JULY 2022. MUMBUA T MATHEKA,JUDGE.CA EdnaSimion Ogada AndiwoGikera & Vadgama AdvocatesRop Macharia & Co. AdvocatesOndieki Orangi & Co. Associates