[2022] KEHC 10091 (KLR)

Asumba v Wainaina & 4 others (Civil Suit 93 of 2001) [2022] KEHC 10091 (KLR) (Commercial and Tax) (15 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10091 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Civil Suit 93 of 2001

A Mabeya, J

July 15, 2022

Between

Mabel Wakasa Asumba

Plaintiff

and

John Mwaura Wainaina

1st Defendant

Wakamo Services Company Limited

2nd Defendant

Hesbon Ahiro Asumba

3rd Defendant

Margaret Kaptuiya Cheibowo

4th Defendant

Trust Bank Limited (In Liquidation

5th Defendant

Ruling

1. The application before Court is the plaintiff's Notice of Motion dated 13/6/2022. The plaintiff seeks a stay of execution of the judgment delivered on 13/5/2022 pending the hearing and determination of an appeal in the Court of Appeal.

2. The application was founded on the grounds that the subject matter of the trial suit was the plaintiff’s residential dwelling house and the primary issue was whether its purported sale by the 5th defendant to the 1st defendant was lawful. That being dissatisfied with the said judgment, the plaintiff has since filed a notice of appeal against it.

3. The plaintiff is worried that if the stay of execution is not issued, she will be evicted from the suit property she will suffer irreparable damage and the appeal shall be rendered nugatory.

4. In opposition to the application, Margaret Mwaura, who is a substitute for the 1st defendant (deceased), swore a replying affidavit on 17/6/2022.

5. She avers that the said judgment ordered the plaintiff to vacate the house within 30 days from the date of delivery in default eviction was to issue. That after the lapse of 30 days, she took possession of the house and has a tenant in occupation. That in the premises, the application is overtaken by events. That the plaintiff resides upcountry and has never been in occupation of the premises but has been obtaining rental income from it.

6. That the plaintiff has no arguable appeal and that she is seeking a stay so that she can continue occupying the house rent and mortgage free.

7. The application was also opposed by Mr.David G. Irungu, the appointed liquidation agent of the 5th defendant via a replying affidavit sworn on 6/7/2022. He argued that the application is incurable defective as it offends Order 42 rule 6 of the Civil Procedure Rules.

8. That even after exercising its statutory power of sale, the 5th defendant was still owed a figure of Ksh.849,001. 65 by the plaintiff. That the matter has been ongoing for 21 years and during this period the plaintiff has been in possession of the suit property to the exclusion of the 1st defendant who is the rightful registered owner.

9. That application only intended to hamper the conclusion of the matter to the detriment of the 1st and 5th defendant. That the 5th defendant needs also to realise its unrecovered debt of Ksh.849,001. 65 plus interest in order to bring this matter to a close.

10. The plaintiff swore a further affidavit on 1/7/2022 in response to the replying affidavit of Ms. Mwaura of 17/6/2022. She denied that Ms. Mwaura has taken possession of the premises. That there was no sale agreement to prove the sale of the suit property from the 5th defendant to the 1st defendant and therefore there was no sale. That merits a grant of stay of execution.

11. Ms. Mwaura filed a further affidavit on 5/7/2022. She reiterated that she did take possession of the suit property at the lapse of 30 days. That she has a tenant living in the premises and produced a Letter of Offer to that effect.

12. A grant of stay of execution pending appeal is provided for under Order 42 Rule 6 of the Civil Procedure Rules. The principles applicable are well known. The application must be made timeously, the applicant must demonstrate substantial loss if stay if not granted and there should be an offer for security for the due performance of the order or decree sought to be stayed.

13. The impugned judgment was delivered on 13/5/2022. The subject application was lodged on 13/6/2022 a period of 30days. It could have been said that there was no in-ordinate delay but for the fact that there was an eviction order that was to take effect immediately after 30 days of the judgment. The application was filed on the last day with no explanation for the delay.

14. The other limb is whether substantial loss has been demonstrated. Judgment was entered for the 1st defendant as against the plaintiff for vacant possession of the suit property within 30 days from 13/5/2022. The plaintiff avers that if the stay is not granted, she would be evicted from the suit property which is her dwelling home. That would therefore suffer irreparable harm that cannot be compensated by an award of damages and the appeal shall be rendered nugatory.

15. Ms. Mwaura argued that the application has been overtaken by events as she already took possession of the suit property on 12/6/2022 and has a tenant in occupation. She annexed in her affidavit a letter of offer on page 29. This was denied by the plaintiff.

16. There was no satisfactory evidence to show that the plaintiff was actually residing in the premises. It was positively averred by Ms. Mwaura that she actually took possession of the premises on 12/6/2022. That there is a new tenant in the premises.

17. In Mukoma v Abuoga (1998) KLR 645 it was held: -“Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”

18. In the case before the court, the status quo is that the 1st defendant is in possession of the suit premises and has a tenant living therein. The appeal therefore would not be rendered nugatory, in the event that it is successful.

19. It would be a different story if the plaintiff had proved to this court that she was living on the premises. Indeed it was submitted that the 1st defendant had avoided due process in obtaining possession. That no due court bailiff was used. This was an admission that the plaintiff had lost possession of the premises.

20. In Housing Finance Company of Kenya v Sharok Kher Mohamed Ali Hirji & another [2015] eKLR it was stated: -“In seeking to balance the interests of the respective parties, the approach we have always taken in determining whether or not to grant a stay of execution is to ensure that applicants are not denied their opportunity to ventilate their legal cases as afforded under the laws through the appeal process, with the possibility of success, while at the same time, respondents are not denied the fruit of judgment in their favour and their rights are safeguarded.”

21. In an attempt to balance the interest of the parties herein, the court will not grant the stay of execution pending appeal. The applicant has not shown how she would suffer substantial loss as she is not in possession of the premises. She took her sweet time and let the 30day window period granted to her before she came to Court. Further, there is proof of a tenant on the suit premises. The application has therefore been overtaken by events.

22. The third limb for a grant of stay of execution is the provision of security by the applicant for the due performance of the decree that may be binding on her. The plaintiff having failed to prove the substantial loss requirement, there arises no need for the Court to consider security limb.

23. Accordingly, the application is dismissed with costs to the 1st and 5th defendant.It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 15TH DAY OF JULY, 2022. A. MABEYA, FCIArbJUDGE