[2023] KEHC 25482 (KLR)

Gumo t/a Endebess Transporters & another v Chemutai & another (Civil Appeal 67 of 2023) [2023] KEHC 25482 (KLR) (20 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25482 (KLR)

Republic of Kenya

In the High Court at Kitale

Civil Appeal 67 of 2023

AC Mrima, J

November 20, 2023

Between

Albert Gumo t/a Endebess Transporters

1st Applicant

Robin Kosgei

2nd Applicant

and

Winny Chemutai

1st Respondent

Wilson Kipkoech Sambu

2nd Respondent

Ruling

1. The main appeal in this matter arose from the dismissal of the Appellants’ Notice of Motion dated 14th July, 2023 in Kitale Chief Magistrates Civil Suit No. 83 of 2013 between the Respondents herein (as Plaintiffs) and the Appellants (as Defendants) (hereinafter referred to as ‘the suit’).

2. The said suit was premised on an alleged breach of contract of employment and negligence as the causes of action.

3. On the basis of a Request for Judgment dated 1st September, 2014 filed by the then Plaintiff’s Advocates in the suit on 2nd September, 2014, the trial Court, which had previously declined to enter interlocutory judgment on account of no proof of service, subsequently entered the said interlocutory judgment against the Appellants herein. That was on 5th September, 2014 after the Plaint was amended.

4. The suit thereafter proceeded for formal proof hearing. Judgment was rendered on 29th September, 2016. Execution was, however, taken out sometimes in May, 2023.

5. On attachment, the Appellants herein filed the Notice of Motion dated 14th July, 2023 in the suit seeking the following orders: -1. That this application be certified urgent to be heard ex-parte in the first instance.2. That the ex-parte judgment entered herein be set aside together with all it’s consequential orders.3. That the defendant/applicants be granted leave to file his defence within such time as to be set out by the court.4. That in the meantime and pending hearing and determination of this application, this honourable court be pleased to issue orders for stay of execution of the court’s judgment.5. That pending interpartes hearing, prayer No.4 be granted in the interim.6. Costs be provided for.

6. The application was heard and a ruling dismissing it delivered on 9th October, 2023.

7. The Appellants then lodged the instant appeal against that ruling contemporaneously with a Notice of Motion dated 18th October, 2023. That is the application under consideration in this ruling.

8. The instant application sought the following reliefs: -1. That this application be certified urgent to be heard ex-parte in the first instance.2. That this honourable court be pleased to issue orders for stay of execution of the court’s judgment, in Kitale CMCC No.83 of 2013, pending hearing and determination of this appeal,.3. That pending hearing of this application interpartes, this honourable court be pleased to issue orders of stay of execution of the court’s judgment in Kitale CMCC No.83 of 2013. 4.Costs be provided for.

9. The application was supported by an Affidavit deposed to by Albert Gumo on 18th October, 2023.

10. The Respondents opposed the application through the Replying Affidavit of Winny Chemutai sworn on 26th October, 2023.

11. Parties tendered oral submissions on the application, hence, this ruling.

13. As the application sought a stay of execution of the judgment in the suit, the starting point in its consideration is Order 42 Rule 6(2) of the Civil Procedure Rules, 2010. The provision gives the conditions precedent to granting a stay of execution order.

14. The conditions are that the Applicant must demonstrate that it will suffer substantial loss unless the order is made, the application is made without any unreasonable delay and the Applicant offers security for the due performance of the decree. (See Antoine Ndiaye vs. African Virtual University [2015] eKLR.)

15. The Court of Appeal in Butt vs. Rent Restriction Tribunal [1979] KLR discussed what ought to be considered in determining whether to grant or refuse stay of execution. The Court stated that the power of the Court to grant or refuse an application for a stay of execution is a discretionary, and the discretion should be exercised in such a way as not to prevent an appeal. Secondly, the general principle in granting or refusing a stay is, if there is no overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal Court reverse the Judge’s discretion. Thirdly, a Judge should not refuse a stay if there are good grounds for granting it merely because, in his or her opinion, a better remedy may become available to the applicant at the end of the proceedings. Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances of the case and its unique requirements.

16. This Court will now apply the above conditions to this matter.

17. On whether the Applicants will suffer substantial loss unless the order is made, the background of this matter has been captured above. The Applicants strenuously decried non-service of Summons and the pleadings and denied the averments contained in the Affidavit of service which was the basis of the entry of the interlocutory judgment. They raised other ground vide their Draft Defence.

18. Without getting into the arena of the substantive appeal, on perusal of the lower Court record, it may appear that the interlocutory judgment was entered on the strength of an Affidavit of Service which the Court had previously declined, through a formal order, to certify itself of appropriate service. That was the Affidavit sworn by one Vincent O. Ogutu on 4th February, 2014 as annexed to the Replying Affidavit of Winny Chemutai filed in the suit on 24th July, 2023.

19. Further, the said Affidavit did not speak to the amended pleadings and referred to non-parties. However, even though such issues ought to largely await the hearing of the main appeal, they still have a bearing on the quest by the Appellants herein to be accorded an opportunity to be heard thereby demonstrating the likelihood of substantial loss to the Applicants if the application is not granted.

20. The Applicants have, therefore, satisfied the first condition.

21. On the aspect of delay, there is no hesitation in finding that the appeal herein and the instant application were made immediately the application to set-aside the ex-parte judgment in the suit was dismissed by the trial Court.

22. As to the security, given the nature of this appeal and the unique circumstances surrounding the issue of service, this Court finds it unnecessary to call for an order for security. Instead, the Court shall fast-track the hearing and determination of the main appeal given that the certified proceedings in the suit are ready for collection.

23. Therefore, deriving from the foregoing, the following final orders do hereby issue: -a.There be a stay of any further execution of the judgment and decree inKitale Chief Magistrates Civil Suit No. 83 of 2013 pending the hearing and determination of the appeal in this matter.b.The Appellants shall file and serve the Record of Appeal together with written submissions on the appeal within 21 days of this order.c.The Respondents shall file and serve their written submissions within 14 days of service.d.This matter is hereby fixed for highlighting of submissions on a date to issue.e.Costs of the application be in the main appeal.Orders accordingly.

DELIVERED, DATED AND SIGNED AT KITALE THIS 20TH DAY OF NOVEMBER, 2022. A. C. MRIMAJUDGERuling No. 1 virtually delivered in the presence of:Miss. Arunga, Counsel for the Applicants/Appellants.Miss Mutai, Counsel for the Respondents.Chemosop/Duke – Court Assistants.