[2022] KEHC 16416 (KLR)

Daib v Kenya Ports Authority; Kenya National Examination Council & 3 others (Interested Parties) (Constitutional Petition 30 of 2019) [2022] KEHC 16416 (KLR) (3 November 2022) (Ruling)

Neutral citation: [2022] KEHC 16416 (KLR)

Republic of Kenya

In the High Court at Mombasa

Constitutional Petition 30 of 2019

A. Ong’injo, J

November 3, 2022

IN THE MATTER OF: THE CONSTITUTION OF THE REPUBLIC OF KENYA AND IN THE MATTER OF: THE EMPLOYMENT ACT, 2007 AND IN THE MATTER OF: FAIR ADMINISTRATIVE ACTION ACT AND IN THE MATTER OF: THE PETITIONERS ACADEMIC PAPERS ISSUED BY THE KENYA NATIONAL EXAMINATION COUNCIL; KENYA METHODIST UNIVERSITY AND KENYA INSTITUTE OF STUDIES IN CRIMINAL JUSTICE AND IN THE MATTER OF: ALLEGE VIOLATION AND INRINGEMENT OF THE RIGHTS AND FREEDOMS IN ARTICLES 2(4), 3, 10, 19(1) & (2), 20(1) & (2), 21, 22, 23, 27, 28, 29(f), 35, 47, 48, & 50(1) & (2), 159, 258(1) & 259(1) OF THE CONSTITUTION OF KENYA , J. BETWEEN

Between

Abdi Mohamed Daib

Petitioner

and

Kenya Ports Authority

Respondent

and

Kenya National Examination Council

Interested Party

Kenya Institute of Studies in Criminal Justice

Interested Party

Kenya Methodist University

Interested Party

Ethics and Anti-Corruption Commission

Interested Party

Ruling

1. The application herein is premised upon a Notice of Motion dated March 8, 2022 seeking the following orders reproduced herein verbatim: -a.That this application be certified as urgent and service be dispensed with in the first instance. (spent)b.That pending hearing and determination of this application, the honorable court be pleased to stay all and further proceedings in Mombasa High Court Constitutional Petition no 30 of 2019. (spent)c.That pending hearing determination of the appeal filed by the respondents, the honorable court be pleased to stay all and further proceedings in Mombasa High Court Constitutional Petition no 30 of 2019. d.That the honorable court be pleased to order the petitioner to meet the costs of and incidental to this application.

2. The background facts to the application are that the petitioner/respondent herein filed a Petition with a Notice of Motion dated April 05, 2019 alleging violation of various constitutional rights by the respondent/applicant and sought numerous reliefs in Constitutional Petition no 30 of 2019. The respondent/ applicant and 4th interested party both filed preliminary objections raising issues of want of jurisdiction and res judicata but the court dismissed the preliminary objections vide a ruling dated May 27, 2020. Being aggrieved by the ruling the applicant filed an appeal in the Court Appeal with the same being recorded at Mombasa Civil Appeal E008 OF 2021 Kenya Ports Authority versus Abdi Mohammed in which the 4th interested party is joined.

3. The application for stay of proceedings herein is supported by an affidavit sworn on March 8, 2022 by Turasha J Kinyanjui, head of litigation and disputes department of the applicant’s company. He depones inter-alia that the respondent/applicant lodged appeal in Court of Appeal at Mombasa on October 19, 2020 and the orders sought herein should be granted on the grounds that the appeal raises triable issues with a high chance of success, that the application herein has been brought without inordinate delay, and that denial of the said orders will render the appeal nugatory which would defeat the course of justice. It was contended that the petitioner/respondent will not be prejudiced if stay orders are granted and in the event that the appeal is unsuccessful he will recover costs and have the opportunity to prosecute the suit herein to its full conclusion.

4. The 4th interested party supported the application vide a Replying Affidavit sworn on May 26, 2022, by Peter Mwita Wambura, its investigating officer. He deponed inter alia that the 4th interested party filed a notice of preliminary objection dated April 24, 2019 on the grounds for lack of jurisdiction but the same was dismissed in the ruling dated May 27, 2020. Being aggrieved by the decision the 4th interested party participated in the appeal proceedings in the Court of Appeal at Mombasa – Civil Appeal no E008 of 2020 as the 5th respondent and has responded and filed submissions in the appeal. That the parties in the appeal are waiting for fixing of a judgment date. He further deponed that the appeal had high chances of success and the petitioner will not suffer prejudice that cannot be reasonably compensated by damages.

5. The petitioner/respondent opposed the application vide a Replying Affidavit dated June 2, 2022 sworn by him. He deponed that the application was brought in bad faith as it was filed two years late and it appears to be a conspiracy to defeat justice. He deponed further that this court has already dealt with the matter and has no further business in adjudicating the same issue. The respondent/applicant is also guilty of laches for not complying with the provisions of rule 32 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) and Practice and Procedure Rules 2013as follows: -Stay pending appeal1. An appeal or a second appeal shall not operate as a stay of execution or proceedings under a decree or order appealed.2. An application for stay of execution may be made informally immediately following the delivery of judgment or ruling and the court may issue such orders as it deems fit and just.3. A formal application for stay may be filed within 14 days of the decision appealed from or within such time as the court may direct.

6. It was argued that the test for grant of stay under rule 32 (3) is not similar to the one set out in order 32 rule 6 as certain conditions must be met before such stay is granted in very clear and exceptional circumstances. The respondent argued that there is no compelling and exceptional circumstances to warrant grant of stay. That in the contrary, to grant a warrant of stay to the proceedings herein which were filed under certificate of urgency on April 11, 2019 could be prejudicial to the petitioner and contrary to the provisions of article 159 (2) (b) of the Constitution.

7. It was also argued that the applicant was guilty of laches for not seeking a stay under rule 5(2)(b) of the Court of Appeal Rulesand has not bothered to explain the reason for not filing the application nearly two years after the date of delivering the ruling they are challenging in the appeal. Further that the 4th interested party’s assertion that the appeal has been canvassed vide written submissions is false as it has not been allocated a hearing date and it is unknown when the appellate court will make a determination.

8. The respondent/ applicant filed submissions on June 22,2022. It was submitted that court’s jurisdiction to grant stay of proceedings pending appeal is derived from both order 42 rule 6 of the Civil Procedure Rules as well as inherent jurisdiction reserved in section 3A of the Civil Procedure Act and rule 32 of the Constitution of Kenya Protection of Rights and fundamentals freedoms) practice and procedure Rules, 2013. Further to this rule 32 is not couched in mandatory terms and filing an application for stay after 14 days does not mean that a party waives their right. It was further submitted that stay ought to be granted in order for the appeal not to be rendered nugatory. Reliance was placed on Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others [2009] eKLR and Niazsons (K) Ltd v China Road & Bridge Corporation Kenya[2002] eKLR.

Analysis and determination 9. Having read the application, the Replying Affidavit, the pleadings filed by both parties as well as the submissions, the issue that emerges for determination is whether the applicant and the 4th interested party are entitled to the relief sought.

10. The applicant has premised his application under order 42 rule 6 that provides thus:“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. 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.’’

11. The grant of orders of stay is an exercise of the court’s discretion which must be exercised judiciously and cautiously to meet the ends of justice. In Global Tours &Travels Limited; Nairobi HC Winding Up Cause no 43 of 2000 it was provided thus: -“As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of Justice .... the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously” (emphasis added)

12. The threshold to be met by an applicant seeking stay of proceedings are: -1. the court is to be satisfied that substantial loss may result to the applicant unless the order is made;2. that the application has been made without unreasonable delay; and3. 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.

13. The provisions of order 46, rule 6 are couched in mandatory terms that the two first conditions must be met for orders of stay of proceedings to be issued. The respondent/applicant is seeking that there be a stay of the proceedings herein so that an appeal that was filed on October 19, 2020 can be heard and determined. This court was informed that as at March 21, 2022, the parties were waiting for a date for judgment submissions having been highlighted. There was however no documentary proof that submissions had been filed and highlighted by the parties in that appeal so as to make the court believe that the appeal would be determined in the near future so that an order for stay if granted would not prejudice to the petitioner’s Petition.

14. The applicant has not explained the cause of delay between 14 days to two years and even though the provisions of rule 32 are discretionary, such discretion has to be exercised in reasonable grounds. Having delayed to file the appeal for stay leave ought to have been sought by the applicant to do so after such a long period of time. What the applicant puts across as substantial loss are issues that have already been adjudicated on and touch on the ruling delivered on May 27, 2020 for which the subject appeal is pending for hearing and determination. The merits or otherwise of the said ruling cannot be treated as substantial loss.

15. In consideration of the time taken to bring the application herein for stay of proceedings and in consideration that this court finds that the applicant had not proved substantial loss, the application is not merited and the same is dismissed with no orders as to costs.

DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS, THIS 3RD DAY OF NOVEMBER 2022HON LADY JUSTICE A ONG’INJOJUDGEIn the presence of: -Ogwel- court assistantMr Ogada for petitioner - No appearanceMr Omondi for respondent - No appearanceMr Bifem for 1st interested party - No appearanceMr Makori for 4th interested party - No appearanceHON LADY JUSTICE A ONG’INJOJUDGEOrder: Ruling to be served to parties via emailHON LADY JUSTICE A ONG’INJOJUDGE