[2023] KEHC 27568 (KLR)

Jeptoo v Ikutwa & 3 others (Civil Appeal E050 of 2022) [2023] KEHC 27568 (KLR) (27 October 2023) (Ruling)

Neutral citation: [2023] KEHC 27568 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal E050 of 2022

F Wangari, J

October 27, 2023

Between

Edna Jeptoo

Appellant

and

Casper Ikutwa

1st Respondent

Karia Mutwiri

2nd Respondent

Salim Mbwana Mwalimu

3rd Respondent

Janet Gitau

4th Respondent

Ruling

1. This ruling relates to an application dated 12th September, 2022 which sought for the following orders: -a.This application be certified urgent and service be dispensed with in the first instance.b.There be interim stay of execution in Mombasa CMCC No. 053 of 2022; Casper Ikutwa & 3 Others v Edna Jeptoo pending the hearing and determination of this application interpartes;c.There be interim stay of proceedings in Mombasa CMCC No. E053 of 2022; Casper Ikutwa & 3 Others v Edna Jeptoo pending the hearing and determination of this application and the instant appeal;d.This Honourable Court be pleased to set aside the orders of Honourable D. Kalo in Mombasa CMCC No. E053 of 2022; Casper Ikutwa & 3 Others v Edna Jeptoo made on 21/03/2022 ordering the Registrar of Motor Vehicles to lift caveats lodged over motor vehicles registration numbers KBQ 265B, KBC 463D and KCJ 880J by the Appellant herein;e.Costs of this application be provided for.

2. The grounds in support of the application were that the 1st Respondent instituted a suit on 22nd January, 2022 against the Appellant before the Lower Court being Mombasa CMCC No. E053 of 2022 which sought among other prayers that the sale of motor vehicle registration numbers KBQ 265B, KBC 463D and KCJ 880J by way of private treaty sale be confirmed as legal and binding. Contemporaneously with the suit, an application seeking same prayers was filed.

3. The application was heard and through a ruling dated 21st March, 2022, the prayers were allowed. The Applicant contends that the Learned Trial Magistrate by allowing the application disposed off the suit at the preliminary stage thus locking her out from the seat of justice.

4. Once again, the Applicant filed another application seeking stay of execution of the orders made on 21st March, 2022 and through a ruling dated 1st September, 2022, the application was dismissed. It was contended that there was risk of execution of the orders issued on 21st March, 2022.

5. It was further averred that the subject motor vehicles were matrimonial property within the meaning of section 6 of the Matrimonial Property Act and were subject of Eldoret Matrimonial Cause No. E001 of 2022 and thus the Trial Court was bereft of jurisdiction as per section 17 of the Matrimonial Property Act. She thus sought for stay of execution pending hearing and determination of the appeal as well as stay of proceedings in Mombasa CMCC No. E053 of 2022.

6. The application was strenuously opposed through a replying affidavit dated 3rd October, 2022 and filed on 4th October, 2022. It was sworn by the 1st Respondent. He averred that the application had been overtaken by events as the motor vehicles have been transferred to the purchasers having bought the same for value.

7. It was equally contended that the motor vehicles were disposed during the marriage and not after marriage had broken down hence not forming matrimonial property. The 1st Respondent averred that he personally bought several matatus and in a bid to secure the future of his children, he agreed with the Applicant to have some of the matatus registered in her name.

8. The Respondent exhibited the sale agreements for motor vehicle KCJ 880J and KBQ 265B. The Respondent further stated that in 2020, the Applicant insisted on moving to Eldoret and this was despite the fact that he had built a matrimonial home in Kakamega. To satisfy the Applicant’s demands, the Respondent sold the matatus which was meant for purchase of a chemist/pharmacy, land and to cater for one (1) year’s rent.

9. It is only upon her filing for divorce that she placed caveats in the motor vehicles whose proceeds of sale she had enjoyed alone. He thus concluded that the placing of caveats in 2022 when the vehicles had been sold in 2020 was malicious and an afterthought. He prayed that the application be dismissed as the appeal filed was not arguable with no chances of success.

10. The Applicant filed a further affidavit wherein she attached copies of official searches for the three vehicles from National Transport and Safety Authority (NTSA) as well as payment receipts. This was to buttress the averment that as at 6th October, 2022, the subject motor vehicles were still registered in her name. The Applicant contended that if any transfers had been done as averred by the 1st Respondent, then the same was done illegally and unprocedurally and thus ought to be voided.

11. Further anomalies were pointed out among them that the 1st Respondent had illegally accessed her NTSA Transport Integrated Management System (TIMS) account and transferred two of the motor vehicles on 20. 5.2022.

12. The application was canvassed by way of written submissions wherein both parties complied by filing detailed submissions and cited various authorities in support of their rival positions.

Analysis and Determination 13. I have considered the application, responses, submissions together with the authorities relied upon by the parties as well as the law and in my view, the following are the issues for determination: -a.Whether the Applicant has made out a case for the grant of interim stay of execution pending hearing and determination of the application;b.If the order in (a) is in the affirmative, whether this court will stay the proceedings in Mombasa CMCC No. E053 of 2022;c.Whether prayer no. 4 in the application can be granted at this stage;d.Who bears the costs of the application?

14. I note that when the matter came before the Duty Judge, no substantive orders were granted save for one on service of the application. Subsequently, on 7th October, 2022, an order that the status quo obtaining then regarding ownership of the subject motor vehicles be maintained pending hearing of the application.

15. I have considered the application dated 12th September, 2022 and I note that there is no prayer for stay of execution pending hearing and determination of the appeal. Be that as it may, I can only pronounce myself on what is before me.

16. Having noted as above, the principles for granting of stay of execution pending hearing of an application or appeal are the same. It is governed by Order 42, Rule 6 of the Civil Procedure Rules, 2010 which provides as follows: -(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 subrule (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; and(b)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.(3)Notwithstanding anything contained in subrule (2), the court shall have power, without formal application made, to order upon such terms as it may deem fit a stay of execution pending the hearing of a formal application.

17. The power of a court to grant stay of execution is discretionary and just like any other discretionary power, the same must be exercised judiciously and not capriciously or whimsically. It must be recalled that the purpose of stay of execution is to preserve the subject matter in dispute while balancing the interests of each of the parties to the dispute.

18. In RRW v EKW [2019] eKLR, the Court of Appeal addressed itself on this issue as hereunder: -“…The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs. Indeed, to grant or refuse an application for stay of execution pending appeal is discretionary. The Court when granting the stay however, must balance the interests of the Appellant with those of the Respondent...”

19. Having settled on the principles, an interrogation of whether the Applicant has met the tests above is imperative. On substantial loss, the Applicant submits that the motor vehicles subject of the application form part of matrimonial property subject of Eldoret High Court Matrimonial Cause No. 1 of 2022. She equally submitted that as at 6th October, 2022, the motor vehicles were all still registered in her name.

20. The 1st Respondent on his part produced motor vehicle registration certificates (log books) showing that the motor vehicles had been transferred to third parties who are not parties to the present application. With these competing documentary evidence, this court is unable to authoritatively state whether any party stands to suffer substantial loss if stay is not granted.

21. Though the Applicant states that there is risk of execution in that the vehicles would have been transferred to third parties, there is conflicting evidence that indeed that is the case. In James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, the court while addressing this limb had the following to say; -“…No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss… This is so because execution is a lawful process…”

22. Therefore, the fact that the Respondents might have set in motion the process of execution does not of itself amount to substantial loss. As was held in the above case, the Applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal.

23. In the same decision above, the Court held that substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory. As I have stated above, there are conflicting documents which need to be interrogated further beyond this stage. I am thus in agreement that the orders issued on 7th October, 2022 were the most abstract.

24. The Applicant states that if stay is not granted, the motor vehicles would be put beyond her reach thereby resulting to substantial loss. On the other hand, the parties who have acquired the motor vehicles would have been kept away from enjoying the motor vehicles which they acquired for value.

25. This Court while balancing these two interests, must satisfy itself that that no party would suffer undue prejudice. The Court of Appeal in Absalom Dova v Tarbo Transporters [2013] eKLR while enunciating this principle stated as follows: -“…The discretionary relief of stay of execution pending appeal is designed on the basis that no one would be worse off by virtue of an order of the court; as such order does not introduce any disadvantage, but administers the justice that the case deserves. This is in recognition that both parties have rights; the Appellant to his appeal which includes the prospects that the appeal will not be rendered nugatory; and the decree holder to the decree which includes full benefits under the decree. The court in balancing the two competing rights focuses on their reconciliation...”

26. It is my considered view that were this court to grant one party stay as against the other, it would have placed them at a more prejudicial position than they are currently. Based on the foregoing, I thus direct that the status quo obtaining on 7th October, 2022 be maintained pending hearing and determination of the appeal.

27. I shall proceed to qualify what status quo is and/or was on 7th October, 2022. Considering that both the Applicant and the 1st Respondent have adduced documentary evidence in support of their rival positions, I direct the Applicant as well as the two third parties whose logbooks have been adduced not to interfere with the ownership records pending determination of the appeal.

28. On the issue of delay, I note that both parties agree that the application was filed timeously and I need not say more on this limb.

29. Lastly, the Applicant is required to furnish security to the Court as security for the performance of the judgment should the appeal fail. The purpose of security was clearly enunciated in Arun C. Sharma vs. Ashana Raikundalia t/a Raikundalia & Co. Advocates & 2 others [2014] eKLR, where the court stated: -“…The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. It is not to punish the judgment debtor…. Civil process is quite different because in civil process the judgment is like a debt hence the applicants become and are judgment debtors in relation to the respondent. That is why any security given under Order 42 rule 6 of the Civil Procedure Rules acts as security for due performance of such decree or order as may ultimately be binding on the applicants. I presume the security must be one which can serve that purpose...”

30. This is not a money claim to warrant deposit of decretal sum or any part thereof. Ordinarily, giving of security should be done as a sign of good faith that the Applicant is ready and willing to commit to giving security. But my reading of Order 42 rule 6(2) (b) of the Civil Procedure Rules reveals that, it is the court that orders the kind of security the Applicant should give as may ultimately be binding on her. This modeling of the law is to ensure the discretion of the court is not fettered.

31. In order to safeguard the subject motor vehicles from being wasted, I direct that whoever has the actual ownership of the motor vehicle does ensure that they are insured and well maintained in terms of servicing pending the determination of this matter.

32. On the second issue, considering that I have made orders allowing the application on the terms indicated above, it thus follows that the proceedings in Mombasa CMCC No. E053 of 2022 be stayed to allow the fast tracking of the appeal.

33. On the third issue, this is a prayer that ought to be made a ground of appeal and not subject of the present application.

34. On the issue of costs, the same shall abide the outcome of the appeal.

35. Following the foregone discourse, the upshot is that the following orders do hereby issue: -a.The application dated 12th September, 2022 is hereby allowed on the following terms: -i.The orders issued on 7th October, 2022 for maintenance of status quo is hereby confirmed on terms that neither the Applicant, Respondent nor the 3rd Parties are allowed to interfere with the ownership records as indicated in the Applicant’s and 1st Respondent’s affidavits pending the hearing and determination of the appeal;ii.To safeguard the subject motor vehicles from waste, the individuals or entities having actual possession of the said motor vehicles shall ensure they are insured and well maintained and serviced;iii.The 1st Respondent or his Counsel to ensure service of this ruling and/or the extracted orders upon the 3rd Parties appearing on the logbooks attached to the 1st Respondent’s affidavit;iv.The Registrar of motor vehicles is directed to furnish the court with a report detailing how two copies of records of motor vehicle and/or logbooks are existing for the same subject motor vehicles within fourteen (14) days from the date the date of service of the court order;v.To give effect to (i) above, the caveats lifted on 21st March, 2022 are hereby reinstated barring any party from interfering with the motor vehicle records;vi.The Deputy Registrar of this Court to extract this order and have it served on the Registrar of Motor Vehicles in order for the compliance of (iii) and (iv) above.b.That an order do issue staying the proceedings in Mombasa CMCC No. E053 of 2022;c.The Applicant/Appellant is directed to file and serve the Record of Appeal within thirty (30) days from, the date hereof;d.In default of (c) above, the application dated 12th September, 2022 shall be deemed dismissed with the attendant consequence that the orders issued on 21st March, 2022 shall be reinstated.e.Costs to abide the outcome of the appeal

Orders accordingly.

DATED, SIGNED AND DELIVERED AT MOMBASA THIS 27TH DAY OF OCTOBER 2023. …………………..F. WANGARIJUDGEIn the presence of;Kigen Advocate h/b for Sangok Advocate for the Applicant/AppellantTinga Advocate h/b for Kamau Advocate for the 1st RespondentBarile, Court Assistant