[2023] KEHC 27388 (KLR)

Choti alias Ibrahim C Osoro v Nyang’au (Civil Appeal E043 of 2022) [2023] KEHC 27388 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 27388 (KLR)

Republic of Kenya

In the High Court at Kisii

Civil Appeal E043 of 2022

TA Odera, J

December 14, 2023

Between

Reuben Choti alias Ibrahim C Osoro

Appellant

and

Beatrice Bitutu Nyang’Au

Respondent

Ruling

1. By a Notice of Motion dated 27th June 2023 and filed through the firm of Kimondo Gachoka & Company Advocates and under Order 22 Rule 22, Order 50 Rule 4, Order 51 Rule 1 of the Civil Procedure Rules, 2010, Sections 3, 3A and 100 of the Civil Procedure Acts, the Appellant/Applicant herein seeks the following orders: -1. Spent.2. That this Honourable Court be pleased to stay the interest of KShs. 676,568. 60/= arising from Ogembo Civil Suit No. 225 of 2016 Beatrice Bitutu Nyang’au v Reuben Choti pending hearing and determination of this application inter partes.3. That the Honourable Court be pleased to stay the interest of KShs. 676,568. 60/= arising from Ogembo 225 of 2016 pending the hearing and determination of Kisii Civil Appeal No.E043 of 2022. 4.That the Honourable Court be pleased to order that the Applicant furnishes security in form of a Bank guarantee for the sum of interests pending the hearing and outcome of the Appeal herein.5. That the Honourable Court be pleased to stay the notice to show slated for 5th July 2022 in Ogembo Civil Suit No. 225 of 2016 Beatrice Bitutu Nyang’au v. Reuben Chotipending the hearing and determination of this application inter partes.6. That the Honourable Court be pleased to stay the interest of KShs. 676,568. 60/= arising from Ogemnbo 225 of 2016 pending the hearing and determination of Kisii Civil Appeal No. 43 of 2022. 7.That this Application be heard inter-parties on such date at such time as this Honourable Court may direct.8. That the costs of the application be provided for.

2. The grounds on the face of the application are that the Respondent assessed her interest arising from Ogembo Civil Suit No. 225 of 2016 Beatrice Bitutu Nyang’au v. Reuben Choti ex-parte. The Applicant filed an application dated 25th June 2022 to have the interest assessed in court which application was declined and the court proceeded to solely assess interest at KShs. 61,557/=. The Applicant paid KShs. 61,557/=. The Respondent subsequently took out a Notice to Show Cause claiming KShs. 676,568. 60/= on 31st May 2022. The Applicant filed an application dated 8. 6.2022 seeking to have the said Notice to Show Cause declared a nullity and set aside the interest as per the ruling entered on 16. 5.2022. The application was determined ex-parte by the Court.

3. The Application was supported by an Affidavit sworn by the Appellant/Applicant’s Counsel Billy Mumo Ndolo on 27. 6.2022. He deponed that the Respondent had interest arising from Ogembo Civil Suit No. 225 of 2016 Beatrice Bitutu Nyang’au v Reuben Choti assessed ex-parte at the registry. He deponed that vide an application dated 25th June 2022, the Applicant sought for interest to be assessed. The court declined so to do and assessed interest at KShs. 61,557/=. He deponed that the sum was paid but the Respondent took out another Notice to Show Cause for the sum of KShs. 676,568. 60/=. According to the Appellant, they had settled the interest as assessed by court, that is KShs. 61,557/=. They filed an Application dated 8th June 2022 seeking to have the Notice to Show Cause declared a nullity and set it aside as interest had been settled. The said Application was determined ex-parte and the court held that the Respondent was entitled to KShs.676,568. 60/= as interest and the application was never set down for inter-partes hearing. They prayed that interest be stayed.

4. The Application was opposed by a Replying Affidavit sworn by the Respondent on 4th July 2022. She deponed that Judgment was entered by the Trial Court on 26th November 2019 and 30 days stay of execution was granted. She deponed that party and party costs was assessed and agreed by consent to be KShs.158,000/=. The Appellant filed an Application dated 7. 5.2020 seeking for stay of execution of the decree in Ogembo CMCC No. 225 of 2016 which application was allowed by consent dated 19. 5.2020. The Appellant paid KShs.968,000/= on 7. 7.2020. The Appellant defaulted on the terms of the consent and a Notice to Show Cause was subsequently issued in respect of KShs. 810,550/= together with costs and interest thereon. The Appellant failed to appear in court for the hearing of the Notice to Show Cause on 12. 1.2021. By consent, Parties agreed that the Appellant would pay the sum claimed within 2 weeks together with KShs.9,000/=, which amount was yet to be paid as at the date of filing the Replying Affidavit. The Appellant subsequently filed an Application dated 11. 2.2021 in Kisii HCCA No. 31 of 2020 seeking to vary the terms of the consent, which application was dismissed. The Appellant proceeded to pay KShs.810,5550/=, which was short of KShs.614,992/= being the balance of the decretal sum. The Trial Court calculated and found that the Appellant owed the Respondent KShs.676,568. 60/= after adding further interest of KShs.61,557/= and further costs. She deponed that the Appellant’s Advocate may have misunderstood the calculations and advised the Appellant to pay KShs.61,557/=. She deponed that the Appellant has only paid KShs.1,778,550/= which amount does not factor in interest so far accrued.

5. The Respondent also filed a Notice of Preliminary Objection dated 1. 7.2022 but filed on 1. 7.2021. The grounds are: -a.The application herein is an abuse of the court’s process under section 7 of the Civil Procedure Act, (Cap. 21), being res judicata.b.The applicant’s application contravenes article 48 of the constitution of Kenya 2010, access to justice for all persons.c.The appeal herein does not comply with order 42 rule 13 of the civil procedure rules and therefore the same is incomplete, which cannot be cured by article 159(2) of the constitution of Kenya as the intention was deliberate.d.The appellant/applicant’s aim in the subject matter herein is not focused on the dispensation of justice, justice shall be done to all, irrespective of status and justice shall not be delayed. (Article 159(2) (a) & (b) of the constitution of Kenya, 2010).e.The appellant/applicant does not glimpse sections 1A and 1B of the civil procedure Act (Cap 21) as required.f.The Applicant failed to apply section 80 of the civil procedure Act (cap 21) Laws of Kenya and order 45 rule 1 of the civil procedure Rules, 2010, for purposes of review of the order before the trial court.

Submissions 6. The Respondent filed its submissions on 3. 4.2023. They submitted that the Appellant is in the habit of filing multiple applications to delay the Respondent from enjoying the fruits of her judgment. She cited Section 7 of the Civil Procedure Act, Cap 21 of the Laws of Kenya and submitted the prayer for interest involves the same parties and same subject matter as in Ogembo CMCC No. 225 of 2016 and that he was essentially seeking for stay of execution of the decree. She cited the case of Njungu v Wambugu and Another Nairobi HCCC No. 2340 of 1991 where Justice Kuloba discouraged unnecessary continuous litigation. She cited Article 48 of the Constitution on access to justice and the case of Republic v Attorney General and Another ex-parte James Alfred Koroso, where Justice G.V. Odunga (as he then was) held that access to justice is not ensured when parties are denied enjoying the fruits of their judgment by unnecessary roadblocks. She cited the case of Mirror Highway Development Ltd v. Central Bank of Kenya, Exchange Bank Ltd. (in voluntary liquidation) and Kamlesh Manshikhlal Pattni where the Court of Appeal held that there must be an end to applications of a similar nature. She submitted that as at 1. 7.2022, there was no draft Memorandum of Appeal and expressed apprehension that the Memorandum of Appeal was only filed after the Notice of Preliminary Objection was filed. She submitted that therefore the application was incomplete as per Order 42 Rule 13 of the Civil Procedure Rules, 2010. She submitted that the interest and costs in the matter accrued over time owing to the frequent adjournments. She cited the case of Abok James Odera t/a A.J. Odera & Associates v John Patrick Macharia & Co. Advocates [2013] eKLR in support of the Overriding Objectives. She also cited the case of Mohamed Kasabuli suing for and on behalf of the Estate of Halima Wamukoya Kasabuli v. Orient Commercial Bank Limited, Civil Application No. Nai 302 of 2008 (UR. 199/2008) where the Court of Appeal reiterated the overriding objectives. Lastly, she submitted that the Appellant ought to have reviewed the orders of the Court as opposed to lodging an appeal.

7. The Appellant/Applicant filed his written submissions dated 20. 10. 2023 and filed on 23. 10. 2023. He submitted that judgment was delivered by the trial Court on 26. 11. 2019. The amount awarded was KShs.1,620,000/= together with party and party costs agreed at KShs.158,000/= bringing the total decretal amount to KShs.1,778,550/=. KShs.968,000/= was paid on 26. 6.2020 and the balance of KShs.810,550/= was paid on 20. 8.2021. As regards interest, the interest on KShs.1,778,550/= from 26. 11. 2019 to 26. 6.2020 at the rate of 14% was submitted to be KShs.145,248. 25/=. Interest on KShs.810,550/= from 26. 11. 2019 to 20. 8.2021 at the rate of 14% was submitted to be KShs.189,128. 33/=, bringing the total interest to KShs.334,376/=. The Appellant submitted that he had so far paid KShs.61,557/= and further interest of KShs.272,810/= which he stated to have annexed the cheques. (I have perused the Court’s record and there are no cheques or copies of any cheques for the said amount attached to the Submissions or the Application dated 27. 6.2022) He submitted that the Lower Court computed interest at KShs.676,568. 60/= which amount was disputed. He submitted that the Application was premised on Order 42 Rules 4 & 6 of the Civil Procedure Rules, 2010 on stay of execution. He cited the case of Halai & Another v Thornton & Turpin [1963] Ltd. [1990] KLR 365 which was cited in Industrial Cause No. 1715 of 2011 Elena Doudoladova Korir v Kenyatta University [2014] eKLR at Nairobi where the Court of Appeal reiterated the conditions for stay of execution of a decree. On substantial loss, he submitted that the Applicant had a meritorious and arguable appeal with high chances of success. He submitted that the Appellant was likely to proceed to have him arrested thus rendering the appeal nugatory. He submitted that the Judgment is of a substantial amount and he was apprehensive that if the same was paid to the Respondent, it was likely that she would deal with it in a manner that would be prejudicial to his interests. He submitted that the Respondent did not disclose nor furnish the Court with any documentary evidence of her financial standing. He cited the case of Kenya Orient Insurance Co. Ltd. v Paul Mathenge Gichuki & Another [2014] eKLR where the High Court sitting at Mombasa held that the Respondent bears the burden of proving that s/he/it can refund the decretal sum should the appeal succeed. He submitted that the Application was filed without unreasonable delay. On security, he submitted that he was ready to provide sufficient security in the form of a suitable bank guarantee for the sum of the alleged disputed amount of KShs.342,201. 80/=, from a reputable financial institution. Lastly, he submitted that he had a good and arguable appeal with high chances of success.

Determination 8. I have considered the Application herein, the Replying Affidavit, the Preliminary Objection and the Parties’ Submissions.

9. In view of the nature of a preliminary objection being a demurrer, I will first handle the Preliminary Objection and then the Application, depending on the outcome I shall arrive at for the Preliminary Objection.

Notice of Preliminary Objection dated 1. 7.2022 10. A preliminary objection was defined by the Court of Appeal in the case of Mukisa Biscuit Manufacturing Co. Ltd. v West End Distributors Ltd. [1969] EA 696 Sir Charles Newbold P. stated:“... A preliminary objection is in the nature of what used to be a demurrer. It raises a point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or is what is sought is the exercise of judicial discretion. The improper raising points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. This improper practice should stop.”

11. Section 7 of the Civil Procedure Act, Cap. 21 Laws of Kenya provides as follows:No court shall try any suit or issue in which the matter directly and substantially issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.

12. In the case of Kennedy Mokua Ongiri v John Nyasende Mosioma & Florence Nyamoita Nyasende [2022] eKLR, the Court referred to the definition of res judicata as per the Black’s Law Dictionary, 10th Edition as“An issued that has been definitely settled by judicial decision…the three essentials are(1)an earlier decision on the issue,(2)a final Judgment on the merits and(3)the involvement of same parties, or parties in privity with the original parties..... ”

13. In the case of Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR, the Court of Appeal held as follows: -“Thus, for the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must all be satisfied, as they are rendered not in disjunctive, but conjunctive terms;a.The suit or issue was directly and substantially in issue in the former suit.b.That former suit was between the same parties or parties under whom they or any of them claim.c.Those parties were litigating under the same title.d.The issue was heard and finally determined in the former suit.e.The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue was raised.The learned Judges were fully aware and applied their minds to these elements when, applying this Court’s decision in Uhuru Highway Development Ltd. v Central Bank of Kenya [1999] eKLR they rendered the elements as;a.The former judgment or order must be final;b.The judgment or order must be on merits;c.It must have been rendered by a court having jurisdiction over the subject matter and the parties; andd.There must be between the first and second action identity of parties, of subject matter and cause of action.The rule or doctrine or res judicata served the salutary aim of bringing finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as a pragmatic and common-sensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and fora, to obtain at last, outcome favourable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute and calumny. The foundations of res judicata thus rest in the public interest for swift, sure and certain justice.There is no dearth of learning or authority surrounding this issue, and this Court has expressed itself on it endless times. In one recent decision, William Koross v Hezekiah Kiptoo Komen & 4 Others [2015] eKLR, it was stated;“The philosophy behind the principle of res judicata is that there has to be finality; litigation must come to an end. It is a rule to counter the all-too human propensity to keep trying until something gives. It is meant to provide rest and closure, for endless litigation and agitation does little more than vex and add to costs. A successful litigant must reap the fruits of his success and the unsuccessful one must learn to let go.Speaking for the bench on the principles that underlies res judicata Y.V. Chandrachud J in the Indian Supreme Court case of Lal Chand v Radha Kishan, AIR 1977 SC 789 stated, and we agree;“The principle of res judicata is conceived in the larger public interest which requires that all litigation must, sooner than later, come to an end. The principle is also founded in equity, justice and good conscience which require that a party which has once succeeded on an issue should not be permitted to be harassed by a multiplicity of proceedings involving determination of the same issue."The practical effect of the res judicata doctrine is that it is a complete estoppel against any suit that runs afoul of it, and there is no way of going around it- not even by consent of the parties- because it is the court itself that is debarred by a jurisdiction injunct, from entertaining such suit. That much was stated by this Court in Ngugi v Kinyanjui & 3 Others [1989] KLR 146 when it held (at p.147) that;“3. Section 7 was a mandatory bar from (sic) any fresh trial of a concluded issue and a Judge cannot completely get round that bar by obtaining the consent of the parties to an arbitration of a concluded issue.” Emphasis mine

14. Does the Notice of Preliminary Objection meet the above-mentioned threshold?

15. The Respondent alleges that the instant application is res judicata as it was heard and determined by the Trial Court in Ogembo CMCC No. 225 of 2016. The Respondent further submitted that the Appellant ought to have filed an application for review as opposed to the present application. I note that the Appellant approached this Court by way of appeal.

16. Black’s Law Dictionary, 6th Edition defines an appeal as a resort to a superior (i.e. appellate) court to review the decision of an inferior (i.e. trial) court for administrative agency; A complaint to a higher tribunal of an error or injustice committed by a lower tribunal, in which the error or injustice is sought to be corrected or reversed. An appeal is therefore not a fresh trial. In fact, on appeal, the appellate court is required to consider the record of the lower court and will only in exceptional circumstances, allow the introduction of new evidence.

17. That said, it then follows that the doctrine of res judicata cannot apply to an appeal, like the instant matter. That ground must then fail.

18. I have perused the other grounds in the Notice of Preliminary Objection, and I can only come to the inescapable conclusion that none of them raise a matter of law. I therefore dismiss the Notice of Preliminary Objection in line with the above findings.

Stay 19. In the instant application, the Appellant/Applicant primarily prays for stay of the interest of KShs.676,568. 60/= arising from Ogembo CMCC No. 225 of 2016 Beatrice Bitutu Nyang’au v Reuben Choti.

20. The wording of the prayers is rather wanting. It is evident that the Trial Court held that the interest due to the Respondent was KShs.676,568. 60/= together with further interest of KShs.61,557/=, of which the Appellant/Applicant has already paid KShs.61,557/=. The Appellant prayed for stay of interest of KShs.676,568. 60/= pending the hearing and determination of the Application and Appeal. Usually, interest continues to accrue unless settled. I suppose that the Appellant/Applicant is seeking for stay of accrual of interest pending the hearing and determination of the application and appeal. I rush to remind Counsel that it is of utmost importance that prayers are properly framed.

21. Black’s Law Dictionary, 6th Edition defines stay as the postponement or halting of a proceeding, judgment, or the like; an order to suspend all or part of a judicial proceeding or a judgment resulting from that proceeding.

22. The law relating to stay of execution pending appeal is well espoused in Order 42 Rule 6 of the Civil Procedure Rules. The Applicant is required to satisfy the Court that: -a.The applicant must demonstrate that they will suffer substantial loss unless the order sought is granted.b.The application has been brought without unreasonable delay.c.Such security as the court orders for the due performance of such decree or order as may be ultimately be binding has been given by the applicant.

23. As relates the first condition on substantial loss, the Court in Michael Ntouthi Mitheu v Abraham Kivondo Musau [2021] eKLR, the Court cited the case of Samvir Trustee Limited v Guardian Bank Limited Nairobi (Milimani) HCCC No. 795 of 1997 where the Court held that“...It is not enough to merely to put forward assertions of substantial loss, there must be empirical or documentary evidence to support such contention. It means the Court will not consider assertions of substantial loss on the face value but the court in exercising its discretion would be guided by adequate and proper evidence of substantial loss.”

24. The case of Kenya Shell Limited v Kibiru [1986] KLR 410 is an authority cited on matters stay of execution. Gachuhi, Ag. JA (as he then was) at 417 held thus: -“It is not sufficient by merely stating that the sum of Shs.20,380. 00 is a lot of money and the applicant would suffer loss if the money is paid. What sort of loss would this be? In an application of this nature, the applicant should show the damages it would suffer if the order for stay is not granted. By granting a stay would mean that status quo remain as it were before judgment. What assurance can there be of appeal succeeding? On the other hand, granting the stay would be denying a successful litigant of the fruits of his judgment.”

25. In the case of Michael Ntouthi Mitheu v Abraham Kivondo Musau (supra), Odunga J (as he then was) held that in a money decree, in considering whether the Appellant will suffer substantial loss, the financial position of the Applicant and the Respondent becomes a crucial issue (Par. 24). This is ideally because, in an application for stay of execution of a decree or order, the Court is called upon to balance the rights of the Decree Holder who should not be prevented from enjoying the fruits of their judgment unless under exceptional circumstances, and those of the Appellant to ensure that the appeal is not rendered nugatory. In the present case, I have perused the Application and the Appellant/Applicant has not stated that he is apprehensive that the Respondent is not capable of refunding the decretal sum, he only belatedly raised it in his submissions. The Respondent did not also comment on the same perhaps owing to the fact that it was raised. It then follows that if the Appellant/Applicant did not raise it, it would appear that indeed, that is not a fear he harbours. He cannot shift the burden of proof to the Respondent for an allegation and/or claim not formally raised and thus not formally put to the Respondent.

26. I also note that the issue in question arises due to non-compliance by the Appellant/Applicant with the terms of a consent entered by the Parties herein.

27. On unreasonable delay, the order in question was made on or around 9th June 2022 whilst the Application and Memorandum of Appeal were both filed on 28. 6.2022. That’s a difference of roughly 18 days which I find not to be inordinate. In that connection, I note that the Respondent submitted that the Memorandum of Appeal was filed after she filed the Notice of Preliminary Objection. Looking at the Court’s record, it is evident that the Appellant/Applicant filed the instant application together with the Memorandum of Appeal.

28. On security, I note that the Appellant/Applicant is ready and willing to offer a bank guarantee for the said amount. I find that given that the interest is the subject in issue, and that ordinarily interest continues to accrue until the decretal sum is paid in full. It would therefore be in the interests of justice that the accrual of interest be stayed pending the hearing of the Appeal herein.

29. On stay of the Notice to Show Cause slated for 5. 7.2022 in Ogembo Civil Suit No. 225 of 2016 Beatrice Bitutu Nyang’au v Reuben Choti, I note that the Appellant/Applicant prays for stay of the same pending the hearing and determination of the instant application. That means, that should I allow the said prayer, the same would lapse immediately I allow it. It is of utmost importance that Courts are not seen to issue orders just for the sake of it, orders that are of no effect. See Foundation Ministry Church- Kitui and Anor v Mailu & 3 Others (Civil Case E002 of 2022) [2022] KEHC 397 (KLR) (6 May 2022) (Ruling)

30. In any event, I have perused the Lower Court’s record and I note that Warrants of Arrest were issued against the Appellant on 26. 7.2022 as a consequence of the hearing of the Notice to Show Cause. Subsequently, the Appellant/Applicant appears to have made a further payment of KShs.273,000/=. In the circumstances, I find and hold that there is nothing to stay. The hearing of the Notice to Show Cause slated for 5. 7.2022 as sought by the Appellant/Applicant as the same has since been overtaken by events.

31. In the end, the Appellant’s Application dated 27. 6.2022 is allowed in the following terms:a.There shall be stay of accrual of further interest in Ogembo Civil Suit No.225 of 2016 Beatrice Bitutu Nyang’au v. Reuben Choti pending the hearing and determination of the Appeal.b.The Appellant/Applicant shall provide a Bank Guarantee for the sum of KShs.676,568. 60/= within 14 days of the date of this Ruling.c.In default of compliance with Order (b) above, execution shall issue.

32. For the avoidance of doubt, all other prayers in the Application are dismissed and the Respondent’s Preliminary Objection is dismissed.

33. Costs shall abide the outcome of the Appeal.

34. Mention on for 25. 1.24 for directions.

DATED, DELIVERED AND SIGNED AT KISII THIS 14TH DAY OF DECEMBER 2023. TERESA ODERAJUDGEIn the presence of:-N/A for the Appellant/ ApplicantN/A for the RespondentOigo Court Assistant