[2021] KEHC 5521 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL APPEAL NO. E061 OF 2021

HAMISI SAIDI RANZUGA.....APPELLANT/APPLICANT

VERSUS

MLONGO KUTO ..........................................RESPONDENT

RULING

1. The application for consideration before this court is the Appellant’s Notice of Motion dated 27th April, 2021. The same is brought under Sections 1A, 1B and 3A and 65,all of theCivil Procedure Act and Order 42 and 51,both of theCivil Procedure Rules and enabling provisions of the law. By the Application, the Appellant/Applicant seeks the following orders: -

1. Spent;

2. That this Honourable Court be pleased to order a stay of execution of the orders made on the 7th of April 2021 pending the hearing and final determination of the Applicant’s Appeal;

3. Spent;

4. Spent;

5. That the costs of this application be provided for.

2. The Motion is supported by the grounds presented on its body and the Affidavit of Hamisi Saidi Ranzuga, the Appellant/Applicant. He averred that on the 25th September, 2019, Judgment was entered in Kwale CMCC No.453 of 2018 wherein he was ordered to pay the Respondent the decretal sum of Kshs.294,070/= plus costs of the suit.

3. Mr. Hamisidepones that he filed an application to set aside the Judgment delivered on 25th September, 2019. It was stated that he was not served to appear before the trial court, but only became aware of the suit when he was served with the Proclamation and Warrant of Attachments.

4. He averred that his application to set aside the judgment, was heard and was dismissed by the trial court vide a Ruling delivered on7th April, 2021to that effect.

5. The Appellant/Applicant stated that being aggrieved and dissatisfied with the Ruling delivered 7th April, 2021,he instructed his Advocates to Appeal the said decision. A Notice of Appeal was filed to that effect on the 28th April, 2021.

6. Mr. Hamisiaverred that he is apprehensive that if the decretal amount is paid to the Respondent, the Respondent would be in no position to refund the same if the intended Appeal is successful.

7. He also averred that unless stay pending the hearing and determination of the intended appeal is granted, the Respondent will move to enforce the Judgment delivered on 25th September, 2019, and render the appeal nugatory and he will suffer irreparable loss and damage that cannot be compensated by costs.

8. The Application was opposed vide a Replying Affidavit sworn on 4th May, 2021byKariuki Gathuthi,Counsel for the Respondent. He averred that the Appellant/Applicant had filed a similar application before the Senior Principal Magistrate Court at Kwale and it was dismissed for being a non-starter.

9. He stated that the application herein is an attempt to mislead the court as the Appellant/Applicant confirmed that he was served with pleadings and forwarded the same to his insurance of choice, Invesco Insurance Company Limited.

10. It was deponed that the Appellant herein in his indolence never entered appearance nor defended his right. That he filed the application to set aside the Judgment one (1) year later and only after he was served with Proclamation and Warrant of Attachment.

11. Mr. Kariuki deponed that the Appellant/Applicant has previously issued cheques for the settlement of the judgment, although faulty, the cheque shows that they had no intention of set aside the said Judgment.

12. According to the Respondent, litigation must come to an end and the Respondent allowed to enjoy the fruits of his Judgment. Lastly, he depones that the application herein is made in bad faith, is an abuse of the court process and should be dismissed with costs to the Respondent.

13. Despite the various directions from this court that parties file written submissions in canvassing the application, they did not do so. Instead, the Respondent indicated to Court that he would rely on his Reply as filed.

ANALYSIS AND DETERMINATION

14. Having considered all the pleadings by the parties, I find the issue that arises for determination is whether this court can issue stay of execution of the RulingandOrders granted on 7th April, 2021pending the hearing and determination of the intended Appeal.

15. Order 42 Rule 6 of the Civil Procedure Rules, 2010 specifies the circumstances under which the court may order Stay of Execution of a Decree or Order pending an Appeal. It provides that an Applicant must demonstrate the following: -

a. Substantial loss may result to the applicant unless the orderwas made;

b. The application was made without unreasonable delay; and

c. Such security as the court orders for the due performance of such decree or order as may ultimately binding on him has been given by the applicant.

16. From the above provision, it is clear that the power to grant an application for stay of execution pending appeal is a discretionary one on sufficient cause being shown, being where the applicant may suffer substantial loss;the application is made without unreasonable delayandon provision of such security as the Court may impose.

17. Further, it is trite law and as evidenced by precedents that an application for stay of execution pending appeal requires that there be a positive requirement/or order that is capable of being stayed.

18. In the case of Western College of Arts and Applied Sciences v Oranga & Others (1976-80) 1 KLR, the Court of Appeal for East Africa in respect of stay of execution, stated as follows: -

“…But what is there to be executed under the judgment, the subject of the intended appeal? The High Court has merely dismissed the suit with costs. Any execution can only be in respect of costs. In Wilson v Church the High Court had ordered the trustees of a church to make a payment out of that fund. In the instant case the High Court has not ordered any parties to do anything, or to refrain from doing anything, or to pay any sum. There is nothing arising out of the High Court Judgment for this Court, in and application for stay, it is so ordered…”

19. The Application as filed by the Appellant/Applicant requires this court to stay the Ruling delivered on 7th April, 2021. I have looked at the said Ruling and find there is nothing that the Magistrate’s Court has ordered to be done or to refrain from being done. In this case, the Magistrate’s court only dismissed an application dated 25th September, 2020 and filed on 8th October, 2020 that required it to set aside the Judgment as was entered in favour of the Respondent.

20. In the case of Co-operative Bank of Kenya Limited –vs- Banking Insurance & Finance Union (Kenya) [2015]Eklr, the Court of Appeal (Kantai J.A) held as follows: -

“…An order for stay of execution [pending appeal] is ordinarily an interim order which seeks to delay the performance of positive obligations that are set out in a decree as a result of a Judgment. The delay of performance presupposes the existence of a situation to stay – called a “positive order” – either an order that has not been complied with or has partly been complied with. See, for this general proposition, the holding of the Court of Appeal of Uganda in Mugenyi & Co. Advocates v National Insurance Corporation (Civil Appeal No. 13 of 1984) where it was stated:

‘….. an order for stay of execution must be intended to serve a purpose …..’” (emphasis supplied) ….”

21. Further, in the case of Kanwal Sarjit Singh Dhiman –vs- Keshavji Jivraj Shah [2008] eKLR, whilst considering whether an order of stay of execution can be granted in respect of a negative order, the Court of Appeal held as follows: -

“…The 2nd prayer in the application is for stay (of execution) of the order of the superior court made on 18th December, 2006. The order of 18th December, 2006 merely dismissed the application for setting aside the judgment with costs. By the order, the superior court did not order any of the parties to do anything or refrain from doing anything or to pay any sum. It was thus, a negative order which is incapable of execution save in respect of costs only…”

22. In light of the above authorities, there is nothing to stay in the present matter and the application dated 17th April, 2021 is hereby dismissed.

23. Each party to bear their own costs.

It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 29TH DAY OF JUNE, 2021

D. O. CHEPKWONY

JUDGE

In the presence of:

Mr. Oyas counsel for Appellant/Applicant

No appearance for and by Respondent

Court Assistant - Bancy