[2017] KEHC 3173 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

CIVIL DIVISION

CIVIL APPEAL NO. 166 OF 2017

CATHERINE NJERI MARANGA………………..…...…APPELLANT/APPLICANT

VERSUS

SERAH CHEGE……......................................................…1ST RESPONDENT

SEB ESTATES LIMITED….…………………...………..………2ND RESPONDENT

RULING

The application

1. The applicant is and has been a tenant of the 1st respondent for at least six years. There have been disagreements about rent. In the lower court, the respondent obtained orders evicting the applicant and attaching her goods. The said court also declined to grant injunctive orders restraining the applicant’s eviction, by its ruling of 24th March, 2017. That ruling dismissed the Applicant’s application for temporary injunction to restrain the defendant from entering the applicant’s premises or interfering with her occupation thereof.

2. The lower court’s order of 24th March, 2017 states:

“1. That the Application dated 28th October, 2016 hereby fails and is dismissed with costs.

2. That the interim orders issued on 28th October, 2016 are discharged”

3. The present application, which is dated 12th April, 2017 seeks stay of execution of the order of the Magistrates’ court. In particular, the Applicant prays that:

“ 1. Spent…

2. That there be stay of execution of the order made on 24th March, 2017 by Honourable Mburu P.M. in the Chief Magistrate’s Court Civil Suit Number 7425 of 2016 Milimanipending the inter partes hearing of this application.

3. That there be stay of execution of the order made on 24th March 2017 by honourable Mburu P.M. in the Chief Magistrate’s Court Civil Suit Number 7425 of 2016 Milimani,until the appeal herein is heard and determined.

4. Costs of this application be provided for.” (emphasis supplied).

4. The present motion is supported by the Applicant’s affidavits in support of the motion dated 18th April, 2017 and a supplementary affidavit dated 24th July, 2017. It is premised on the grounds that: the Applicant is the tenant of the suit premises L.R. No. 217/10712998, House No. 7 owned by the 1st Respondent; that the said Magistrate’s Court decision dismissed the Applicant’s application for injunctive orders restraining the Respondents from evicting the Applicant and attaching her goods; and that she stands to suffer substantial loss. She further states that, she is ready and willing to give reasonable security for costs in the appeal.

5. The application is opposed vide the replying affidavit and supplementary affidavit of the 1st Respondent dated 30th May, 2017 and24th July, 2017, respectively.

Submissions

6. At the hearing, Mr. Kihoro, counsel for the Applicant submitted that the figures as to the rent owing kept fluctuating, despite her having paid rent up to date. At the time of proclamation on 24th March, 2016 the rent was Kshs. 549,805. 00 for which there was no breakdown. Upon a second proclamation dated 18th August, 2017 the amount of Kshs. 670,788. 00 was demanded, which, according to the Applicant, was in fact not owing to the 1st Respondent and thus delegitimizing the levying of distress. The Applicant also submitted that there was an arguable appeal with high chances of success which may be rendered nugatory if the Applicant was evicted. Finally, the Applicant stated that she was willing to deposit the rent funds into court.

7. Mr. Chege, counsel for the Respondent, submitted that for the court to grant the orders sought, the Applicant must show a prima facie case and demonstrate that there is irreparable damage which cannot be compensated by an award of damages. Further, counsel referred to the attached notice of termination of the tenancy, pointing out that it was after the notice was issued that the Applicant went to court. The court ruled against her hence the appeal to this court.

8. Counsel submitted that that the 1st Respondent relies on the rent money for income. In this case, the applicant paid an amount of Kshs. 440,000. 00 in April, 2017, whilst still in arrears, but no payment has since been made. The Respondent argues that the Applicant only pays rent when she is proclaimed, hence the repeated proclamations. Accordingly, if the orders are granted, the 1st Respondent will continue to suffer due to non-payment, until the appeal is dismissed. It was also argued that the orders granted in the past have caused injustice to the 1st Respondent.

Discussion and Analysis

9. The only issue before me is whether or not, in the circumstances, I ought to grant stay of execution of the order of the Magistrates Court, pending the hearing of the appeal. The applicable provision of law isOrder 42 rule 6 of the Civil Procedure Rules 2010.

10. 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.’

11. From the above provision, it is clear that the court must be satisfied that there is “sufficient cause” to grant a stay. Further, the filing of an appeal does not, ipso facto, guarantee stay of execution of the court’s orders. The two conditions which must be considered are: whether the court is satisfied that the applicant will suffer substantial loss if the order is not made; and secondly, that the applicant is willing to give such security for the due performance of the decree or order in issue, as may ultimately be binding on him or her.

12. The authorities on stay of execution pending appeal are clear that for an order of stay of execution to lie, 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. InWilson v Churchthe 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 orderd 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”

13. In the application before me, as in Western College, there is nothing which the Magistrates Court has ordered to be done or to refrain from being done. All it has done is to dismiss an application dated 28th March, 2017 resulting in the lifting of a temporary stay that had been granted pending that outcome. Indeed that stay became automatically discharged by the dismissal of the application.

14. 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 inMugenyi & 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 …..’ ” (emphasis supplied).

15. Further, in the more recent case of Kenya Commercial Bank Limited v Tamarind Meadows Limited & 7 Ors [2016] eKLR, the Court of Appeal expounded on stay of execution stating:

“16. 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 vs. Oranga & Others [1976] KLR 63 at page 66 paragraph C).”

17. 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…”

16. In light of the above authorities, there is nothing to stay in the present matter and the application is hereby dismissed, on that ground.

17. Further, in the present case, it is also not controverted that when the application before the lower court was dismissed, the Applicant proceeded to file a similar application to preserve her tenancy before the Rent Restriction Tribunal. Correspondingly, the Applicant also proceeded to file an appeal in this court against the decision of the lower court. That suit is Rent Restriction Tribunal in Case No 515 of 2017.

18. That Tribunal issued the following orders dated 21st April, 2017:

“…2. THAT the Defendants/Respondents, their servants, employees and/or agents are hereby restrained from attaching, selling the proclaimed goods belonging to the Plaintiff/Tenant and/or in any other manner dealing with the goods [or] evicting, harassing her and/or in any other manner interfering with her tenancy.

3. That the Plaintiff/Tenant is to continue paying rent as usual. ”

19. It is a matter of great concern to this court that the above orders issued by the Rent Tribunal, are now in place. It appears that the said orders were not served on the 1st Respondent, who learnt of them through the Applicants’ further affidavit of 18th July, 2017. The concern here is that whilst this matter was pending in the High Court, or between the High Court and the Magistrates Court, the Applicant took it upon herself to open another line of litigation in the Rent Restriction Tribunal. This can only be viewed as forum shopping, or at best as setting up a multiplicity of suits. This undoubtedly compromises the integrity of the judicial process with the great potential for generating conflicting decisions on the matte, and denigrating the court’s dignity.

20. This is an unacceptable state of affairs and cannot be tolerated by this court. To have more than a single litigation running in respect of, or arising from, the same subject-matter, amounts to an abuse of the court process, a situation that must be nipped in the bud.

Disposition

21. Accordingly, this court must, and hereby stays the proceedings herein, to give the applicant opportunity to elect and choose her preferred forum of dispute resolution with finality.

22. As noted aforesaid, the application fails for lack of anything to stay. Further, as the orders applied for herein cannot avail, the present application also fails on that ground.

23. The application is dismissed with costs.

24. Orders accordingly.

Dated and Delivered at Nairobi this 3rd Day of October , 2017

______________________________

RICHARD MWONGO

PRINCIPAL JUDGE

Delivered in the presence of:

1……….…………………….………………..…..…for the Appelllant/ Applicant

2………………………..…….………………....…for the 1st & 2nd Respondents

Court Clerk……………..………………………..……………………………………