[2024] KECA 1382 (KLR)

Biashara Sacco Society Limited & 2 others v Mugambi & another (Civil Application E032 of 2024) [2024] KECA 1382 (KLR) (11 October 2024) (Ruling)

Neutral citation: [2024] KECA 1382 (KLR)

Republic of Kenya

In the Court of Appeal at Nyeri

Civil Application E032 of 2024

W Karanja, LK Kimaru & AO Muchelule, JJA

October 11, 2024

Between

Biashara Sacco Society Limited

1st Applicant

Gabriel Githigah Kuria Githiga

2nd Applicant

Geoffrey Maina Kagiri

3rd Applicant

and

Veronica Wanjiru Mugambi

1st Respondent

Mugambi Wang’ombe

2nd Respondent

(An application for stay of proceedings and orders of the Judgment of the High Court of Kenya at Nyeri (Muya, J.) dated 7th March, 2024 in H.C.C.A. No. E52 OF 2021)

Ruling

1. The applicants moved this Court by notice of motion essentially under Rule 5 (2) of this Court’s Rules seeking the following orders:“That this honourable court be pleased to issue orders of stay of the judgment delivered on the 7th March, 2024 in Nyeri Civil Appeal No. E52 of 2021; Mugambi Wang’ombe and Veronica Wanjiru Mugambi –vs- Biashara Sacco Society, Gabriel Githigah Kuria Githigah and Geoffrey Maina Kagiri pending the hearing and final determination of this application and of the intended appeal.”

2. The application is supported by the grounds in support thereof and the annexed affidavit of Joseph Kamau Njamuku, the Chairman of the 1st applicant. The applicants state that they were aggrieved by the said judgment and wish to appeal against the same to this Court. They are of the view that they have a good appeal with high chances of success. They were apprehensive that if the application for stay of execution is not granted, the intended appeal will be rendered nugatory.

3. The application is opposed. Mugambi Wang’ombe, the 1st respondent swore a replying affidavit in opposition to the application. The 1st respondent deposed that the judgment of trial court cannot be faulted since the applicants had, in an alternative to the main prayer for specific performance, sought the refund of the purchase consideration of Kshs.12,000,000.

4. The 1st respondent doubted whether this Court had jurisdiction to entertain the intended appeal in light of Section 81 of the Co-operative Societies Act which decrees that an appeal to the High Court from a decision of the Co-operative Tribunal is final. The 1st respondent was of the view that the applicant’s intended appeal to this Court had no chances of success nor would the applicant’s intended appeal be rendered nugatory since they succeeded in their suit against the respondents, albeit by being granted an alternative to the main prayer in their suit.

5. Both the applicant and the respondent filed written submissions in support of their respective opposing positions. During the plenary hearing of the appeal, learned counsel Mr. Ng’ang’a for the applicants and Ms Mwai for the respondents relied on the written submissions filed.

6. Under Rule 5 (2) of the Court of Appeal Rules, 2022, this Court has jurisdiction to grant an order staying the execution of a judgment and decree of a superior court pending the hearing and determination of the intended appeal. The jurisdiction is discretionary. An applicant must establish the twin principles that he has an arguable appeal, and secondly, that the intended appeal will be rendered nugatory if the stay of execution sought is not granted. (See Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR).

7. We have considered the rival submissions made by the parties to this application. As regards the first principle of whether the applicants have an arguable appeal, the first hurdle that the applicants will have to surmount is whether this Court has jurisdiction to entertain the intended appeal. Section 81 of the Co-operative Societies Act provides thus:“Appeal to the High Court.1. Any party to the proceedings before the Tribunal who is aggrieved by any order of the Tribunal may, within thirty days of such order, appeal against such order to the High Court; provided that the High Court may, where it is satisfied that there is sufficient reason for so doing, extend the said period of thirty days upon such condition, if any, as it may think fit.(2)……….(3)The decision of the High Court on any appeal shall be final.”

8. It is common ground that the decision that the applicants intend to appeal to this Court, originally emanated from a decision of the Co-operative Tribunal established under Section 77 of the Co-operative Societies Act. The decision that the applicants seek to challenge before this Court is the appellate decision of the High Court.

9. In their draft memorandum of appeal, the applicants intend, inter alia, to challenge the decision of the High Court on the grounds that the respondents were not members of the 1st applicant. In our considered view, we are not convinced that we have jurisdiction to entertain the intended appeal in light of the statutory bar to further appeals as provided under Section 81 (3) of the Co-operatives Societies Act. We, therefore, hold that the applicants cannot be said, in the circumstances, to have an arguable appeal before this Court.

10. Further, it was clear that the High Court granted the applicants the alternative to the main prayer which they sought in the claim before the Co-operatives Tribunal. In that claim, the applicants sought a prayer for specific performance in respect of certain parcels of land which had not been transferred to them or in the alternative a refund of Kshs.12,000,000, which constituted the purchase consideration. The alternative prayer was granted by the High Court together with interest and costs.

11. The applicants cannot therefore complain that their intended appeal with the rendered nugatory when the purchase consideration was ordered refunded to them. The applicants therefore failed to establish that their intended appeal will be rendered nugatory in the circumstances if the order of stay is not granted.

12. It is clear from the above reasons that the application is for dismissal. It is hereby dismissed with costs to the respondents.

DATED AND DELIVERED AT NYERI THIS 11TH DAY OF OCTOBER, 2024. W. KARANJA………………………JUDGE OF APPEALL. KIMARU………………………………JUDGE OF APPEALA. O. MUCHELULE……………………………JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.