[2022] KEHC 1733 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT

AT ELDORET

MISC APPLICATION NO E10 OF 2022

CROWN BUS SERVICES.....................................................................APPELLANT

VERSUS

RICHARD WAINAINA T/A CROWN BUS SERVICES LTD.......RESPONDENT

Coram: Hon. Justice R. Nyakundi

Wambua, Kigamwa & CO. Advocates

Kimondo Gachoka & CO. Advocates

R U L I N G

1. The application herein relates to a chamber summons dated the 28th of January 2022 and made pursuant to rule 55(5) of the Auctioneers Rules and Section 3A of the Civil Procedure Act. In particular, the appellant seeks a stay of execution of the taxation ruling delivered on 26th January 2022 by the Honourable Onkoba Mogire in Eldoret Misc. Application No. 133 of 2021.

2. The application is premised on the fact that the lower court in its ruling delivered on 26th January 2022 awarded the auctioneer costs of Kshs 176,000/= on attachment of 3 motor vehicles namely KDA 134V, KCP 016Z and KBX 874R valued at approximately Ksh 8,500,000. It is this costs that the appellant disputes on grounds that the auctioneer can only be paid fees on attachment as per the Auctioneer’s Act and upon actual attachment and not work not done. In this regard, it was the appellant’s contention that the lower court erred in failing to correctly interpret part II (4) of the Auctioneer’s Act and further erred in applying wrongly the principle of stare decisis.

3. The application was supported by the affidavit of Mohamed Ahmed, a manager to the appellant, sworn on even date as the application wherein he reiterated the grounds highlighted herein above. In particular, Mr. Mohamed averred that the lower court awarded the respondent Kshs 176,000/= when there was no actual attachment. Secondly, the manager averred that the appellant remains apprehensive that unless the order sought are granted, the respondent might proceed to execute against the appellant over the ruling delivered on 26th January 2022 to its detriment.

4. The application was vehemently opposed by the respondent through his reply to the chamber summons sworn on the 7th of February 2022. The respondent in particular argued that it is settled law that a proclamation by an auctioneer amounts to an attachment. He thus relied on a Court of Appeal decision that he did not cite. Consequently, it was the respondent’s averment that the fees awarded by court was properly computed based on the Auctioneers schedule of charges which he argued clearly graduates the fees based on percentages as it advances upwards based on the remaining value of the subject matter. In this regard, the respondent attached the motion filed seeking assessment of charges, the submissions by the respondent, the replying affidavit and submissions of the appellant and which are marked A, B, C and D, respectively.

5. The respondent concluded by urging court not to grant the stay as sought on grounds that the appellant has failed to demonstrate the substantial loss it would suffer and has not proffered security for due performance.

Determination

6. Having considered the application, the affidavit both in support of the application and in opposition, it is clear that the only issue for determination is whether the appellant has met the threshold for grant of the stay orders sought.

7. The principles guiding the grant of a stay of execution pending appeal are well settled. These principles are provided under Order 42 rule 6(2) of the Civil Procedure Rules which provides as follows:

No order for stay of execution shall be made under subrule (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.

8. In Vishram Ravji Halai vs. Thornton & Turpin Civil Application No. Nai. 15 of 1990 [1990] KLR 365, the Court of Appeal held that whereas the Court of Appeal’s power to grant a stay pending appeal is unfettered, the High Court’s jurisdiction to do so under Order 41 rule 6 of the Civil Procedure Rules is fettered by three conditions namely: establishment of a sufficient cause, satisfaction of substantial loss and the furnishing of security. Further, the application must be made without unreasonable delay.

9. To the foregoing I would add that the stay may only be granted for sufficient cause and that the Court in deciding whether or not to grant the stay and that in light of the overriding objective stipulated in sections 1A and 1B of the Civil Procedure Act, the Court is no longer limited to the foregoing provisions. The courts are now enjoined to give effect to the overriding objective in the exercise of its powers under the Civil Procedure Act or in the interpretation of any of its provisions.

10. According to section 1A(2) of the Civil Procedure Act “the Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective” while under section 1B some of the aims of the said objective are; the just determination of the proceedings; the efficient disposal of the business of the Court; the efficient use of the available judicial and administrative resources; and the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties.

11. It therefore follows that all the pre-Overriding Objective decisions must now be looked at in the light of the said provisions. This does not necessarily imply that all precedents are ignored but that the same must be interpreted in a manner that gives effect to the said objective. What is expected of the Court is to ensure that the aims and intendment of the overriding objective as stipulated in section 1A as read with section 1B of the Civil Procedure Act are attained. It is therefore important that the Court takes into consideration the likely effect of granting the stay on the proceedings in question. In other words, the Court ought to weigh the likely consequences of granting the stay or not doing so and lean towards a determination which is unlikely to lead to an undesirable or absurd outcome. What the Court ought to do when confronted with such circumstances is to consider the twin overriding principles of proportionality and equality of arms which are aimed at placing the parties before the Court on equal footing and see where the scales of justice lie considering the fact that it is the business of the court, so far as possible, to secure that any transitional motions before the Court do not render nugatory the ultimate end of justice. The Court, in exercising its discretion, should therefore always opt for the lower rather than the higher risk of injustice. See Suleiman vs. Amboseli Resort Limited [2004] 2 KLR 589.

12. The same position was adopted by Kimaru, J in Century Oil Trading Company Ltd vs. Kenya Shell Limited Nairobi (Milimani) HCMCA No. 1561 of 2007 where he stated that:

“The word “substantial” cannot mean the ordinary loss to which every judgement debtor is necessarily subjected when he loses his case and is deprived of his property in consequence. That is an element which must occur in every case and since the Code expressly prohibits stay of execution as an ordinary rule it is clear the words “substantial loss” must mean something in addition to all different from that…Where execution of a money decree is sought to be stayed, in considering whether the applicant will suffer substantial loss, the financial position of the applicant and that of the respondent becomes an issue. The court cannot shut its eyes where it appears the possibility is doubtful of the respondent refunding the decretal sum in the event that the applicant is successful in his appeal. The court has to balance the interest of the applicant who is seeking to preserve the status quopending the hearing of the appeal so that his appeal is not rendered nugatory and the interest of the respondent who is seeking to enjoy the fruits of his judgement.”

13. In the present case, the appellant is apprehensive that unless the orders sought are granted, the appeal would be rendered nugatory. In particular, the appellant is worried that the respondent would proceed and execute against the appellant.

14. In my view, the fear of the appellant is real and not perceived. This is because there is a decree from the lower court in favour of the respondent and against the appellant. Furthermore, it is not in doubt that there was proclamation of the appellant’s three motor vehicles valued at Kshs. 8. 5 million. The totality of this is that if the court does not issue the stay order, there is real possibility that the respondent in enjoying the fruits of his judgment would proceed and execute against the appellant to his detriment. In addition, for purposes of justice and fairness and to meet the overriding objectives of the Civil Procedure Act, it is only prudent for this court to grant the appellant the orders sought so as not to frustrate his right of appeal.

15. In the end, I find merit and grant the appellant the orders sought.

16. Furthermore, this court directs the parties to file their respective submissions on the appeal within 14 days of the ruling herein with mention on compliance set on the 28th of March 2022.

17. It is so ordered.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 8th DAY OF MARCH, 2022.

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R. NYAKUNDI

JUDGE