[2022] KEHC 1871 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CIVIL CASE NO. 152 OF 2018

ENOCK PTINEK MANYU..........................................................APPELLANT/ APPLICANT

VERSUS

JAMII BORA BANK............................................................................................RESPONDENT

RULING

1. The applicants Notice of Motiondated29th of November 2021 prays for the following reliefs;

a) That this Honorable Court be pleased to restrain the Defendants by way of an injunction from selling by auction or otherwise, transferring, alienating, charging or in any way interfering with the Plaintiff's quiet possession and use of Land Parcel number L.R NO 10/235 KABACHIA ESTATE (NAKURU COUNTY) pending hearing and determination of an appeal against the judgement of this honorable court.

b) THAT costs of this application be provided for.

2. The application is supported by the grounds on the face thereof and the sworn affidavit of the applicant dated 29th November 2021. He deposed that this honorable court delivered its judgement herein on 18th November, 2021 and being aggrieved he has filed a notice of appeal and has applied for a copy of certified proceedings.

3. That he had been advised by his advocates on record, which advise he verily believed to be true, that he had an arguable appeal and that this honorable court had discretion to issue orders that preserve the suit property. He urged the court to exercise its discretion in allowing the application as the same had been brought without delay and he was willing to abide with orders that this honorable court may make in terms of security for costs or otherwise.

4. The respondent in response to the application filed grounds of opposition dated 14th December 2021 in which it has termed the application totally misconceived and a total waste of judicial time. That the order cannot be made since the appeal was entirely dismissed and no order can therefore be made in vacuum.

5. When the matter came up for hearing the court directed that the same be determined by way of written submissions which the parties have complied

Applicants Submissions

5. The applicant submitted that the orders appealed from were in the negative being orders for dismissal of an application and therefore the said orders could not be stayed as they are incapable of execution. That however, there was need to preserve the suit property because if the same was sold by way of an auction his appeal will be rendered nugatory. He urged the court to be guided by the provisions of Order 42 rule 6 of the Civil Procedure Rules in its consideration of the application as there were no express provisions that apply to the present circumstances.

6. The applicant submitted further that he had an arguable appeal and placed reliance on the case of Scofinal Ltd (Ruere Estate) v Abisagi Igoki [2018] eKLR where the court held that in order to earn a stay of execution, one was not required to persuade the court that the filed appeal had a high probability of success but the arguability of the appeal. He urged the court to allow appeal and award costs in his favour.

Respondents Submissions

7. The respondent identified only one issue for determination and that is whether the applicant meets the threshold to be granted the orders sought. It is the respondent’s submission that the applicant’s application was a backdoor application for stay of execution having relied on Order 42 rule 6(1) of the Civil Procedure Rules disguised as an application for a temporary injunction. That this court cannot determine an application for temporary injunction for the second time having pronounced itself on the same. The respondent submitted that this court’s orders of 18th September 2018 dismissing the appeal cannot be stayed as the same are negative orders not capable of being enforced. The courts attention was drawn to the case of Republic v Retirement Benefits Appeals Tribunals Ex-parte Heritage Insurance Company [2017] eKLR.

8. In conclusion, it was submitted for the respondent that the present application was devoid of any merit and ought to be dismissed.

Analysis and Determination

9. I have considered the pleadings and submissions by parties and in my view the issue arising for determination is whether the application dated 29th November 2021 has merit. In addressing the same this court takes note of the Judgment of 18th November 2018 entered in favour of the respondent.

10. In this application, the applicant admits that this court cannot issue injunctive reliefs as they were incapable of execution. The applicant in his submissions urged the court to be guided by the provisions of Order 42 rule 6 (1) in its consideration of the application as there were no express provisions that apply to the present circumstances.

11. In view of the above, i find that this court has no jurisdiction to stay any action unless there is a positive order of court for something to be done or enforced. This court has no power to stay a negative order of dismissal as was found by the Court of Appeal in the case of Oliver Collins Wanyama v Engineers Board of Kenya [2019] eKLRwhere it observed that

“An order of stay is not available to the applicant if his application for judicial review having been dismissed, giving rise to a negative order that is incapable of being stayed”

12. In the premises, it is clear that there is no order of this court in the judgment dated 18th September 2021 that is capable of execution. All that the applicant ought to do is perhaps seek further solace from the Court of Appeal.

13. The application is otherwise dismissed with costs.

Dated signed and delivered via video link this 3rd day of March 2022.

H K CHEMITEI.

JUDGE