[2023] KEHC 25114 (KLR)

Emojel v Etyang (Civil Appeal E020 of 2022) [2023] KEHC 25114 (KLR) (10 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25114 (KLR)

Republic of Kenya

In the High Court at Busia

Civil Appeal E020 of 2022

WM Musyoka, J

November 10, 2023

Between

Dennis Thomas Emojel

Appellant

and

Kefina Etyang

Respondent

(An appeal arising from the ruling and orders of Hon. Lucy Ambasi, Chief Magistrate, CM, delivered on 12th May 2022, in Busia CMCP & A No. 9 of 2021 (formerly CMCP&A No. 148 of 1991)

Ruling

1. I am called upon to determine an application, dated 15th March 2023. The same was filed herein by the appellant on even date. It seeks stay of execution of orders made on 12th May 2022, by the Chief Magistrate in Busia CMCP&A No 9 of 2021, pending the hearing and determination of the appeal. The said orders are the subject-matter of the appeal herein. The grounds are that the appellant has filed an appeal, which has overwhelming chances of success, and which stands to be rendered nugatory should the stay orders not be granted. It is also argued that substantial loss would occur, and the application has been filed promptly without unreasonable delay.

2. The affidavit sworn in support, by the appellant, on 14th March 2023, does not give much of a factual background, for it largely regurgitates the grounds set out on the face of the application. The only fact deposed is that the appellant had acquired the land from the deceased, after which he disposed of it to a third party over 30 years ago, and the said third party has been in occupation to date. He has attached a copy of the memorandum of appeal filed herein, which was quite unnecessary, given that this cause was initiated by the filing of that same memorandum, and the same is still on record. He has also attached a bundle of photographs, and an application for stay of execution of the said orders, filed at the trial court, which was dismissed through a ruling delivered on 7th March 2023, a copy of which is attached.

3. The reaction to the application is in the form of grounds of opposition, that were filed herein on 13th April 2023, of even date. It is averred that the application is res judicata, a similar application having been filed and dismissed at the trial court, it was without merit and was an afterthought, and it was frivolous and vexatious.

4. The application was canvassed by way of written submissions. I have perused the written submissions filed herein by both sides, and I have noted the arguments made.

5. Although the memorandum of appeal, which commenced these proceedings, was filed on 7th June 2022, no record of appeal has been filed to date. The original trial court records have never been availed. The appeal is yet to be admitted. I raise this issue because, although I am being invited to stay orders made in a ruling delivered on 12th May 2022, which is also the foundation for the instant appeal, a copy of that ruling is not in the record before me, neither is there a copy of the formal orders extracted from that ruling. I cannot tell whether such a ruling exists, and, if it does exist, whether the orders made in it are capable of execution, to warrant orders being made to stay them.

6. The question is, which are these orders that I am being asked to stay? Where are they? What was the application, which formed the basis for the ruling and the orders? How did the trial court handle the issues arising in that application? This is critical, because I am being told that there is an arguable appeal. How would I assess whether the grounds of appeal present an arguable case, when I do not have, before me, the decision being appealed against? How do I assess, at the preliminary or superficial or prima facie level, that the grounds of appeal are arguable, without access to the thought process that the trial court went through, as would emerge from the ruling and the decision? How would I evaluate the reasonableness of the grounds, if I am not able to assess whether the trial court could have been mistaken in the principles of law it applied, or in the way it interpreted the facts presented and how it applied the law to them?

7. I find it surprising that the appellant has not exhibited a copy of that ruling or the orders extracted from it, yet his appeal and the instant ruling are about that ruling and its orders. The appeal and the application were filed on account of that ruling. Stay of execution of orders is not granted merely because an appeal has been filed. Such stay orders are available only where the orders sought to be stayed are in fact capable of being executed. It would be futile and unnecessary for the court to stay orders that are not even executable, such as where a court dismisses an application or a suit. An order dismissing a suit or an application is not capable of being stayed. The suit or application would have been dismissed, and the dismissal order cannot be executed by the party favoured or advantaged by the dismissal. I am only emphasizing the need to exhibit the ruling or the orders targeted for stay, so that the court can assess whether they are capable of execution or not, to obviate the spectre of the court making stay orders in vain.

8. It is critical that the orders sought to be stayed should be displayed before the appellate court. It would not be necessary to exhibit them in an application before the trial court, for they would be orders of that court, and would be in the record of that court, that would be before the magistrate seized of the stay application. For the sake of the appellate court, where an application for stay of the said orders is sought, the ruling or an extract of the orders ought to be displayed, so that the appellate court is made aware of the orders it is being invited to stay, unless, at the time the stay application is filed, a record of appeal has already been filed, or the original trial records have been availed, for the said orders would then be available. The appellate court ought not grant orders blindly or ignorantly of the purport of the said orders. The appellant herein displayed largely unnecessary material, in his supporting affidavit, instead of exhibiting what would have been most critical for the purposes of determination of a stay application.

9. With the ruling, or the orders sought to be stayed, not having been placed before me, I cannot even begin to assess the merits of the application herein, for that would be an impossible task. I agree with the respondent, the application before me is not properly founded, and is misconceived. It is for dismissal, and I hereby dismiss it, with costs. Orders accordingly.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT BUSIA ON THIS 10TH DAY OF NOVEMBER 2023WM MUSYOKAJUDGEMr. Arthur Etyang, Court Assistant.AdvocatesMr. Onsongo, instructed by Obwoge Onsongo & Company, Advocates for the appellant.Mr. Ashioya, Instructed by Ashioya & Company, Advocates for the respondent.