[2023] KEHC 26443 (KLR)

Grobler v Cabinet Secretary for Interior & Coordination of National Government (Civil Appeal E658 of 2021) [2023] KEHC 26443 (KLR) (Civ) (8 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26443 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E658 of 2021

CW Meoli, J

December 8, 2023

Between

Maretha Grobler

Applicant

and

Cabinet Secretary For Interior & Coordination Of National Government

Respondent

Ruling

1. This ruling relates to the Notice of Motion by Maretha Grobler (hereafter the Applicant) dated 13th July, 2022. It is anchored on the grounds set out on its face and the depositions in the affidavit of the Applicant, supporting her prayer for stay of execution of the decision rendered on 11th February, 2021 by the Cabinet Secretary for Interior and Coordination of National Government (hereafter the Respondent), and an order to maintain the status quo so as to allow the Applicant to enter and exit Kenya pending the hearing and determination of the appeal herein.

2. The Applicant deposed in her supporting affidavit that she was at all material times a holder of Special Pass Number xxxx which permitted her to work at Morgan Air and Sea Freight Logistics Kenya Limited (the Company) from 19th February, 2021 to 19th May, 2021; that she had previously been issued with a Class D work permit by the Department of Immigration (the Department) that was set to run from 4th December, 2018 to 4th December, 2020 and on the strength of which she took up the role of Company Representative and Office Manager at the Company on 4th December, 2018. That however, her application for renewal of the Class D work permit was denied by the Department of Immigration on 23rd November, 2020 on grounds that her work could be performed by a Kenyan national. Prompting her to lodge an appeal against the said decision with the Respondent, but which appeal was rejected on 11th February, 2021 without reasons being furnished.

3. She further avers that she is aggrieved by the decision by the Respondent and desires to challenge it by way of appeal, and therefore seeks to stay execution of the Respondent’s decision. The Applicant averred that previously, her advocate filed Misc. Civil Application No. 228 of 2021 and obtained interim orders which have long lapsed. That the purpose of the stay order sought would be to permit her to enter and leave the country freely, pending the hearing and determination of the appeal. The Applicant further averred that unless the stay order sought is granted, she will suffer prejudice, which will render the appeal nugatory.

4. The Respondent resisted the Motion through the replying affidavit sworn by Jimmy Nyikuri, an Immigration Officer in the Department. He deposes that vide the communication made on 23rd November, 2020, the Department supplied the grounds for declining the application for renewal of her work permit, namely that, her job could be performed by a Kenyan. The deponent stated that upon the Applicant lodging an appeal with the Respondent, the said appeal was rejected on the grounds that it did not disclose any new evidence which could warrant a different outcome.

5. The motion was canvassed by way of written submissions. The Applicant’s counsel anchored his submissions on Order 42, Rule 6(2) of the Civil Procedure Rules (CPR) on the principles undergirding applications for stay of execution. Counsel submitted that the instant Motion was timeously filed and that unless a stay is granted, the Company’s operations are likely to be interrupted while the Applicant runs the risk of being arrested, detained and/or deported for want of status, thereby rendering the appeal nugatory. Counsel cited the decisions in Nicholas Stephen Okaka & another v Alfred Waga Wesonga [2022] eKLR and Francis K. Chabari & another v Mwarania Gaichura Kairubi [2022] eKLR on the principle of substantial loss. On security for costs, counsel stated that the Applicant was ready and willing to comply with any conditions imposed by the court but urged the court to grant an unconditional stay of execution.

6. On behalf of the Respondent, it was contended that the Applicant has not satisfied the conditions for grant of a stay of execution pointing out that there has been unreasonable delay in filing the instant Motion; that the Applicant has not demonstrated the manner in which she stands to suffer substantial loss in view of the decision rendered in Samuel Nduati & 3 others v Cabinet Secretary Ministry of Health & 9 others [2018] eKLR where the court appreciated the rights of Kenyans to enjoy employment opportunities in their country, in priority over foreigners. That the Applicant has not demonstrated the manner in which she has been denied free movement in and out of the country, or that her work duties have in any way been affected by the Respondent’s decision. Counsel is of the view that no arguable appeal exists since the Respondent correctly exercised its discretion in rendering its decision in respect of the Applicant’s application for renewal. The court was therefore urged to dismiss the Motion with costs.

7. The court has considered the rival affidavit material and submissions by the respective parties. It is apposite before considering the merits of the motion to state that question whether an arguable appeal exists is not a consideration in an application seeking stay of execution.

8. That said, it is trite law that the courts have discretionary power to grant an order for a stay of execution of a decree or order pending appeal and which discretion ought to be exercised judicially. See Butt v Rent Restriction Tribunal (supra). The applicable provision is Order 42, Rule 6 of the CPR which stipulates that:“(1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of 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.(2)No order for stay of execution shall be made under sub rule (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; andb.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”.

9. As to whether the application has been brought without unreasonable delay, going by the record, it is apparent that the impugned decision was rendered on 2nd February, 2021. It is also apparent that subsequently, the Applicant sought and was granted an interim order of stay on 18th May, 2021 in High Court Misc. Application No. E228 of 2021 and which interim orders were extended for another 60 days from 10th November, 2021. The instant Motion was brought close to seven (7) months from the date on which the extended timelines were set to lapse, on or about 13th July, 2022. No explanation was proffered for the prolonged delay.

10. The condition concerning substantial loss in an application for stay of execution was aptly addressed by the Court of Appeal in the renowned case of Kenya Shell Ltd v Kibiru & Another [1986] KLR 410 when it held that:“Substantial loss in its various forms is the cornerstone of both jurisdictions for granting stay. That is what has to be prevented…”

11. The Court proceeded to state the following on the subject:1. “ …..2. In considering an application for stay, the Court doing so must address its collective mind to the question of whether to refuse it would render the appeal nugatory.3. In applications for stay, the Court should balance two parallel propositions, first that a litigant, if successful should not be deprived of the fruits of a judgment in his favour without just cause and secondly that execution would render the proposed appeal nugatory.4. In this case, the refusal of a stay of execution would not render the appeal nugatory, as the case involved a money decree capable of being repaid.”

12. The decision of Platt Ag JA, in the Shell case, in my humble view set out two different circumstances when substantial loss could arise, and therefore giving context to the 4th holding above. Platt Ag JA (as he then was) stated inter alia that:“The appeal is to be taken against a judgment in which it was held that the present Respondents were entitled to claim damages. It is a money decree. An intended appeal does not operate as a stay. The application for stay made in the High Court failed because the gist of the conditions set out in Order XLI Rule 4 (now Order 42 Rule 6(2)) of the Civil Procedure Rules was not met. There was no evidence of substantial loss to the Applicant, either in the matter of paying the damages awarded which would cause difficulty to the Applicant itself, or because it would lose its money, if payment was made, since the Respondents would be unable to repay the decretal sum plus costs in two courts.”

13. The learned Judge continued to observe that:“It is usually a good rule to see if Order XLI Rule 4 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the Applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss in its various forms, is the cornerstone of both jurisdictions for granting stay. That is what has to be prevented. Therefore, without this evidence, it is difficult to see why the Respondents should be kept out of their money.”

14. Earlier on, Hancox JA in his ruling observed that:“It is true to say that in consideration [sic] an application for stay, the court doing so must address its collective mind to the question of whether to refuse it would, render the appeal nugatory. This is shown by the following passage of Cotton L J in Wilson v Church (No 2) (1879) 12ChD 454 at page 458 where he said: -'I will state my opinion that when a party is appealing, exercising his undoubted right of appeal, this court ought to see that the appeal, if successful, is not rendered nugatory. As I said, I accept the proposition that if it is shown that execution or enforcement would render a proposed appeal nugatory, then a stay can properly be given. Parallel with that is the equally important proposition that a litigant, if successful, should not be deprived of the fruits of a judgment in his favour without just cause.”

15. The court has considered the unique circumstances presented before it by the Applicant, alongside the rival arguments by the Respondent as set out hereinabove. The question whether the Respondent correctly or reasonably exercised its discretion in declining to renew the Applicant’s work permit is an issue for determination on appeal. As it stands, the Applicant has an undoubted right of appeal and is essentially seeking to have the status quo maintained to permit her freely move into and out of the country until her appeal is heard and determined. The object being to obviate the risk of arrest and/or forceful deportation to her home country, South Africa. Thus, the court is satisfied that unless the status quo is maintained, the Applicant’s right to actively participate in and be heard on the already existing appeal could be hindered.

16. Section 40(12) of the Kenya Citizenship and Immigration Act provides that any applicant who is aggrieved by the decision rendered by the Cabinet Secretary in respect of an application seeking a permit, may lodge an appeal with the High Court. The Court of Appeal in Vishva Stone Suppliers Company Limited v RSR Stone(2006) Limited (2020) eKLR emphasized the right of appeal in the following terms:“Turning to the request to allow the applicant to exercise his now undoubted constitutionally underpinned right of appeal, the position is…. crystalized …. in the case of Richard Ncharpi Leiyagu vs. IEBC & 2 Others (supra); Mbaki & Others vs. Macharia & Another [2005] 2EA 206; and the Tanzanian case of Abbas Sherally & Another vs. Abdul Fazaiboy, Civil Application No. 33 of 2003; for the holding inter alia, that:(i)the right to a hearing is not only constitutionally entrenched but it is also the corner stone of the Rule of law;(ii)the right to be heard is a valued right; and(iii)that the right of a party to be heard before adverse action or decision is taken against such a party is so basic that a decision which is arrived at in violation of it will be nullified, even if the same decision would have been reached had the party been heard, because, the violation is considered to be a breach of natural justice…”

17. In view of all the foregoing circumstances, the court is persuaded that the Applicant has reasonably demonstrated the manner in which the appeal may be rendered nugatory if stay is denied.

18. The upshot therefore is that the court will grant a conditional temporary order staying execution of the Respondent’s decision pending the determination of the appeal. Nonetheless, the court notes that the Respondent’s decision was rendered in February 2021 and the appeal lodged in the same year. However, it was not until July 2022 that the present motion was filed. The delay in approaching the court for stay or in prosecuting the appeal, which will soon be three years old, is unexplained.

19. In the circumstances, and to expedite the appeal, the court will grant an order to stay execution pending appeal, but subject to the following conditions:i.The Applicant shall within 14 days deposit into Court the sum of Kes. 150,000/- (One Hundred and Fifty Thousand) as security for costs and in default, the stay order shall automatically lapse.ii.The Applicant shall file the record of appeal within 21 days of today’s date.iii.The Applicant shall fully prosecute the appeal within 120 days of today’s date.iv.In default of compliance with conditions (ii) or (iii) above, the appeal shall stand automatically dismissed for want of prosecution.

20. Costs will abide the outcome of the appeal.

DELIVERED AND SIGNED AT NAIROBI ON THIS 8 THDAY OF DECEMBER 2023. C.MEOLIJUDGEIn the presence of:For the Applicant: Mr OtienoFor the Respondent: No appearanceC/A: Emily