[2023] KEHC 26269 (KLR)

Crown Bus Services Limited v Mukani (Suing as the Administrator of the Estate of Moses Ong’anga Wafula - Deceased) & another (Commercial Appeal 240 of 2023) [2023] KEHC 26269 (KLR) (6 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26269 (KLR)

Republic of Kenya

In the High Court at Nakuru

Commercial Appeal 240 of 2023

HM Nyaga, J

December 6, 2023

Between

Crown Bus Services Limited

Appellant

and

Judith Were Mukani (Suing as the Administrator of the Estate of Moses Ong’anga Wafula - Deceased)

1st Respondent

Crater View Auctioneers

2nd Respondent

Ruling

1. The Application before me is the one dated 24th August 2023. It is brought pursuant to Order 42 Rule 6, Order 51 Rule 1 of the Civil Procedure Rules,2010 and Sections 1A, 1B, and 3A of the Civil Procedure Act. The Application seeks a temporary stay of execution of the ruling delivered by Hon. Peter Aloyce Ndege on the 24th August,2023 in Civil Suit No. 89 of 2013 - Crown Bus Services Limited Versus Judith Were Mukani (Suing as the Administrator of the Estate of Moses Ong’ang’a Wafula- Deceased), Crater view auctioneers and for costs of the Application.

2. The Application is premised on the grounds on its face and supported by an affidavit of Mohamed Ahmed who is the Applicant’s Operations Manager, sworn on the even date.

3. It was the Applicant’s case that it filed an application dated 18th August,2022 seeking for orders compelling the 2nd Respondent to immediately return the possession of Motor Vehicles KBR 492 B Scania Bus and KBX 875 R Scania Bus to the Applicant pending the hearing and determination of the Application; Order directing the proper computation of the outstanding decretal sum if any upon taking credit of the advance decretal payment of Ksh.3,000,000. 00 with interest to the Plaintiff pursuant to consent judgement in HCCA 115 OF 2015-crown Bus Services Limited Vs Judith Were Mukani(Suing as the Administrator of the Estate of Moses Ong’anga Wafula-Deceased) dated 17th October,2019 pending the hearing and determination of the Application; pending the hearing and determination of the Application leave be granted to the Defendant/Judgement Debtor to liquidate any outstanding decretal sum if any by way of monthly payments of Ksh.100,000/= until settlement in full on or before the 10th of every successive month until payment in full; without prejudice the plaintiff/decree holder either by herself or her agents and/or servants be restrained from levying execution against any of the defendants assets pending the hearing and determination of the Application ; and for costs of the Application.

4. He deponed that vide a ruling delivered on 24th August,2023 by Hon. Peter Aloyce Ndege the Application was dismissed and the Applicant being aggrieved by the Ruling intends to appeal against the whole ruling.

5. He stated that however the Respondent is likely to commence execution proceedings at any time and if the intended execution commences, the applicant will suffer substantial irreparable loss and damage.

6. He averred that the application has been brought without unreasonable delay and that the Respondents do not stand to suffer any prejudice if the orders sought are granted.

7. He deposed that the Applicant is ready and willing to abide by any orders the court may deem just and fit to issue.

8. In opposition to the Application, the advocate for the Respondents swore a replying affidavit on 18th September,2023. He averred that the Application is bad in law as the impugned ruling was not annexed.

9. He deponed that the Applicant filed a similar application dated 18th August,2023 seeking similar orders as in the instant application, which was heard and dismissed vide a ruling delivered by Hon. A. P. Ndege on 24th August,2023, and as such there were no substantive orders made capable of being stayed.

10. He urged the court to note that the judgement complained of was delivered on 8th September,2015 that is 8 years down the line.

11. He deposed that after the delivery of the judgement the appellant preferred an appeal being Nakuru HCA No. 115 of 2015 which appeal was heard and judgement delivered on 13th June,2019.

12. That the respondent moved to execute the aforementioned judgement and in that process, the appellant herein preferred another appeal being Nakuru HCCA No. E034 of 2021 and filed an application seeking orders of stay of execution and a prayer to liquidate the decretal sum in installments, which application was also dismissed with costs to the respondent.

13. He averred the said appeal was dismissed for want of prosecution on 25th January,2023.

14. He drew this court’s attention to the application dated 23rd March,2021 wherein the applicant sought similar orders and its manager acknowledged indebtedness in the sum of Ksh. 5,260,332. 20 which amount the applicant proposed to settle in monthly installments of Ksh. 219,180. That the said application was heard and in a ruling delivered on 24th February,2022 the applicant was ordered to make a deposit of Ksh. 2,630,115 and liquidate the difference of Ksh. 2,630,115. 00 in equal monthly installments of Ksh. 219,180 until payment in full and in default execution to issue.

15. He averred that the applicant failed to comply with the said orders and when the decree holder moved to execute, the applicant rushed to this court seeking further orders for stay.

16. In light of the foregoing, he deposed that it is apparent that the Applicant’s intention is to deliberately delay the settlement of the decretal sum.

17. He averred that the respondent is entitled to enjoy fruits of successful litigation and by unfairly delaying the payment, the respondents’ right is being infringed upon and justice delayed is justice denied.

18. He urged the court to dismiss this application with costs.

19. The Application was canvassed through written submissions

Applicant’s Submissions 20. The Applicant submitted that it stands to suffer substantial loss and irreparable damage if execution of the ruling is not stayed.

21. Citing the case of Butt vs Rent Restriction Tribunal [1982] KLR 417 the applicant urged this court to exercise its discretion in its favour.

22. The applicant argued that for a court to grant orders of stay, the applicant has to have an arguable appeal and demonstrate that if stay is not granted the intended appeal would be rendered nugatory. In support of this proposition reliance was placed on the case of Co-operative Bank of Kenya Limited vs Banking Insurance & Finance Union (Kenya)[2015] eKLR.

23. The Applicant argued that its appeal is not frivolous and it is exercising its right of appeal and does not intend to deprive and lock up the respondents from enjoying the fruits of judgment as they alleged. In buttressing its submissions, the Applicant relied on Transjuba International Limited vs ZEP-RE (PTA Reinsurance Company) & 2 others [2015] eKLR, Kenya Tea Growers Association & Another vs Kenya Planters & Agricultural Workers Union, CA. No. Nai. 72 of 2001; Housing Finance Company of Kenya vs Sharok Kher Mohamed Ali Hirji & another [2015] eKLR.

24. The applicant further submitted that its insurer is mandated to satisfy the decree on its behalf under the doctrine of subrogation and relies on premiums to collect the said amounts and would suffer substantial loss and damage if stay is not granted and the Appeal succeeds. In this respect, the Applicant relied on the case of Reliance Bank Limited vs Norlake Investments Ltd [2002] 1 EA 227

25. The Applicant citing the case of Stanley Kang'ethe Kinyanjui vs Tony Keter & 5 Others[2013] eKLR where the court held inter alia that Whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved, submitted that in determining whether or not an appeal will be rendered nugatory this court has to consider the conflicting claims of both parties and each case has to be determined on its merits.

26. The applicant submitted that if the orders sought are not granted the chief magistrate will proceed on the assumption that the Applicant’s equity of redemption has indeed been extinguished and the only remedy available to it shall be in damages. Reliance was placed on the case of Housing Finance Company of Kenya v Sharok Kher Mohamed Ali Hirji & another[2015] eKLR where the court cited the case of Kenya Hotel Properties Limited v Willesden Properties Limited Civil Application Nai. No. 322 of 2006 (UR 178/06) where the court in relation to money decree held that with time, it became necessary to put certain riders to that legal position as it became obvious that in certain cases, undue hardship would be caused to the Applicants if the stay is refused purely on grounds that the decree is a money decree.

Respondents’ Submissions 27. The respondents submitted that no substantive orders were made that are capable of being stayed and prayed that the application be dismissed with costs.

Analysis & Determination 28. The applicant seeks stay of execution of the lower court ruling delivered on 24th August, 2023.

29. The guiding provisions of the Law with regards to Stay of Execution are to be found in Order 46 Rule 6 (2) of the Civil Procedure Rules, 2010 which provides that an applicant must demonstrate the following: -a.Substantial loss may result to the applicant unless the order was made.b.The application was made without unreasonable delay; andc.Such security as the court orders for the due performance of such decree or order as may ultimately binding on him has been given by the applicant.

30. From the above provisions of law, it is evident that for the Court to exercise its discretion, the Applicant should meet the conditions as set out in the said Order 42 Rule 6 of the Civil Procedure Rules, 2010.

31. The Applicant did not annex a copy of the ruling court of the lower court as correctly pointed out by the Respondent. However, having perused the file I have come across that ruling. In that ruling the learned magistrate dismissed the Applicant’s application with costs to the Respondents and did not order any party to do anything or refrain from doing anything. Clearly there were no substantive orders issued. There is plethora of Court decisions both in the Court of Appeal and from the High Court that have held that when a Court has granted negative orders, there is nothing that can be stayed. See the case of Western College Farts And Applied Sciences Vs Oranga & Others[1976] KLR 63 where the Court held that: -“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. An execution can only be in respect of costs…..”The High Court has not ordered any of the 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 an application for stay to enforce or restrain by injunction.”

32. Further in the case of John Mbua Muthoni & Another v Ruth Muthoni Kariuki(2017) eKLR, the Court held that;“33. I have anxiously given thought to this question. I have looked at the cases cited by the parties. In addition, I have returned to Justice Odunga’s decision in R v The Commissioner for Investigations & Enforcement Ex Parte Wananchi Group of Kenya Limited [2014] eKLR. In that case, Justice Odunga declined to grant a stay pending appeal after dismissing a Judicial Review Application on the ground that where the High Court has dismissed an application for judicial review, the Court does not grant any positive order in favour of the Respondents which is capable of execution. As such a stay of execution is not available in such circumstances. 34. I am persuaded that the circumstances here are the same as those in the Wananchi Group Case which I find to be persuasive. It is in accord with the James Hoseah Gitau Mwara Case cited above. The narrow holding in that case is that a stay of execution is not available where the Court has declined to issue judicial review orders since a refusal to issue the orders cannot be “executed.” A broader holding would be that whenever a Court strikes out a suit or refuses to grant the substantive orders sought by the Court, a stay of execution is not available since any such stay would not be directed at a decision against which the intended appeal is not directed,”

33. The Court of Appeal in the case of The Hon. Peter Anyang’ Nyong’o & 2 Others vs The Minister for Finance & Another Civil Application No. Nai. 273 of 2007, the Court of Appeal expressed itself as follows:“It is trite law that the Court of Appeal is a creature of statute and can only exercise the jurisdiction conferred on it by statute. The jurisdiction of the Court of Appeal to grant interim reliefs in civil proceedings pending appeal is circumscribed by rule 5(2)(b). It is apparent that under that rule the Court can only grant three different kinds of temporary reliefs pending appeal, namely, a stay of execution, an injunction and a stay of further proceedings. That rule has been construed to the effect that each of the three types of reliefs must relate to the decision of the superior court appealed from. Where the High Court has merely dismissed the suit with costs, any execution can only be in respect of costs since the High Court has not ordered any of the parties to do anything or refrain from doing anything or to pay any sum and therefore there is nothing arising out of the High Court judgement for the Court of Appeal in an application for stay, to enforce or to restrain by injunction. A temporary injunction asked for is extraneous to a stay of execution as it does not relate to what the High Court ordered to be done or not to be done and the Court of Appeal has no jurisdiction to entertain it...Where the superior court merely upheld the preliminary objection and as a consequence stuck out the application for judicial review with costs, the order striking out the application is not capable of execution against the applicant save for costs.”

34. Similarly, in Raymond M Omboga vs Austine Pyan Maranga Kisii HCCA No. 15 of 2010, Makhandia, J (as he then was) held:“The court cannot see how it can order stay of the decree that is not the subject of an appeal. Had the aforesaid order been the subject of this appeal then different considerations would have applied. The court would have looked at it alongside the settled principles aforesaid for granting stay of decree. 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 do not arise... It is trite law that stay of execution pending appeal can only be granted against the order being appealed against. Put differently, an order for stay of execution pending appeal cannot be granted if the intended appeal is not against the order sought to be stayed; yet this is what obtains in this application where the applicant’s appeal is against the order of dismissal of his application, yet the stay sought is against the subordinate court’s judgement or decree.”

35. East African court of Appeal declined to grant an injunction or a stay of execution. Law V.P at page 66 paragraph C, D had this to say; -“But what is there to be executed under the judgement, 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 the instant case, the High Court has not ordered any of the parties to do anything or refrain from doing anything or to pay any sum. There is nothing arising out of the High Court Judgement for this court in an application for stay to enforce or to restrain by injunction”.

36. Given that the order of the Court dismissing the Application was a negative order, there was no order to be executed and therefore upon the Court’s perusal of Application, the annextures in support, the Affidavits and the written submissions, I find and hold that it cannot stay the orders that had been issued as negative orders are not capable of being stayed.

37. Consequently, I find and hold that the Notice of Motion Application dated 24th August,2023 by the Applicant is not merited and the same is dismissed entirely with costs to the Respondent.

DATED, SIGNED AND DELIVERED AT NAKURU THIS 6THDAY OF DECEMBER, 2023. H. M. NYAGA,JUDGE.In the presence of;C/A KipsugutMs Angiela for Okatch for ApplicantMr. Mukisa for Respondent