[2017] KEHC 4164 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL SUIT NO. 172 OF 2002

1. JEREMIAH KIMIGHO MWAKIO

2. PATRICK K. MULISHO

3. MOHAMED GODHANA

4. AMOS AMITAI..............................PLAINTIFFS/APPLICANTS

VERSUS

TANA AND ATHI RIVERS

DEVELOPMENT AUTHORITY......DEFENDANT/RESPONDENT

RULING

1. The plaintiffs/applicants through an application dated 6th January, 2017 which is not premised on any provisions of the law pray for the following orders:-

i. Spent;

ii. That there be a stay of the court’s ruling/order dated 20th December, 2016, proceedings and any consequential orders that may be issued with regard to the defendant/respondent, pending the hearing and determination of the intended appeal from the aforesaid ruling;

iii. That there be a stay of the court’s ruling/order dated 20th December, 2016, proceedings and any consequential orders that may be issued with regard to the defendant/respondent pending the hearing and determination of this application;

iv. Spent; and

v. That the cost of this application be provided for.

2. The application is supported by the affidavit of Jeremiah Mwakio sworn on 6th January, 2017 and the grounds in support of the application. The respondent filed a replying affidavit on 22nd March, 2017, sworn by Mr. Steven Githaiga Ruimuku the Managing Director of the respondent corporation, opposing the application. The 1st applicant, Jeremiah Mwakio was authorized by his co-applicants to argue the application on their behalf.

3. The applicants in pursuit of their application submitted that they were not given adequate time to prepare for the hearing before the Deputy Registrar as the respondent served them on two occasions with replying affidavits in court. They requested the said court not to consider the affidavits as they were served late. The applicants stated that the Deputy Registrar indicated that the decree had an error but in his view the decree complied with the provisions of sections 27(1) and 27(2) of the Civil Procedure Act (CPA). He further said that the decree was prepared by their Advocate, Kinyua Kamundi and no amendment was made to the decree. He added that the appeal to the Court of Appeal did not address the issue of the decree having an error and that the respondent’s case in the said Court was dismissed. They were told that costs of the Court of Appeal would be processed by the High Court. He prayed for stay of execution of the order/ruling of 20th December, 2016 as they intend to appeal to this court against the said ruling.

4. Mr. Oluga, Learned Counsel for the respondent appreciated that the applicants were laymen acting in person but pointed out that although the applicants were praying for stay of execution of the ruling dated 20th December, 2016, no notice of appeal had been filed, yet the period provided for appealing had elapsed. He further submitted that the Deputy Registrar did not make any positive order as such an appeal cannot lie from her order. He added that the Deputy Registrar annulled the Notice to Show Cause which was premised on a faulty application for execution which was in regard to the amount due under the decree and pursuant to Order 22 rule 19(2) of the Civil Procedure Rules. He indicated that the applicants should have filed a fresh application.

5. Counsel submitted that the presumption that could be made is that the application herein is premised on the provisions of Oder 42 rule 6 (1) of the Civil Procedure Rules. It has not however been shown what substantial loss the applicants will suffer and no security has been offered. A notice of appeal has also not been given. He added that the applicants' view as captured in the grounds in support of the application is that they stand to suffer substantial loss if they are paid Kshs. 3,930,574. 40 instead of Kshs. 17,950,725. 72. Mr. Oluga argued that if the applicants are paid Kshs. 3,930,574. 40 they can be paid the balance if they are successful on appeal.

6. Counsel for the respondent informed the court that the issue before the Deputy Registrar was on how interest was calculated, she held that interest should have been calculated as simple interest and not compound interest. He submitted that the respondent’s Managing Director (MD) appeared in court in person as required and filed an affidavit in response to the application. The said MD addressed the court and personally responded to the Notice to Show Cause.

7. In response to the foregoing, the applicants stated that they were not given an opportunity to respond to the respondent’s affidavit before the Deputy Registrar and that they could not have filed a fresh notice before her.

ANALYSIS AND DETERMINATION

The issue for determination is if the applicants have satisfied the principles for grant of orders for stay of execution.

8. The issue before the Deputy Registrar was a Notice to Show Cause as to why execution should not issue for the sum of Kshs. 17,136,250. 60. It was based on an application for execution of a decree where interest had been calculated at Kshs. 19,305,109. 94. When the parties appeared before the Deputy Registrar on 5th December, 2016, it was clear that the respondent disputed the manner in which the applicants had calculated interest.

9. On 21st November, 2016, when the parties appeared before the Deputy Registrar the applicants protested their having been served with an affidavit at the court premises. The MD having been present, was allowed to personally respond to the Notice to Show Cause.

10. Further hearing of the Notice to Show Cause was scheduled to 5th December, 2016. Parties were directed to reconcile their accounts. The Judiciary account's office was also requested to do the same. On 5th December, 2016 further submissions were made on the amount of interest due to the applicants. The Notice to Show Cause was extended to 20th December, 2016. This court notes that on the said date, the applicants filed an affidavit which the Deputy Registrar took into account when she wrote her ruling of the said date. The submission by the applicants that they were never given a chance to respond to the respondent’s affidavit which they were served with on 21st November, 2016 is therefore unfounded and misleading.

11. The pertinent issue here however is if this court can stay execution of the ruling dated 20th December, 2016. It is apparent from the proceedings before the Deputy Registrar that after delivery of the ruling, the applicants did not make an oral application before her for stay of execution of her ruling. All that the applicants did was to pray for a copy of her handwritten ruling. On 6th January, 2017 the applicants filed an application under certificate of urgency seeking stay of execution of the ruling of the 20th December, 2016. This court declined to certify the application as urgent.

12. As properly pointed out by Counsel for the respondent, the applicants have not grounded their application on any provisions of the law. This court’s presumption therefore is that it has been brought under the provisions of Order 42 rule 6 of the Civil Procedure Rules. The said provisions state 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 in so far as the court appealed from may order but, the court appealed from may from 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 an 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; 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.”

13. Sub-rule 5 thereof provides that an application for stay may be made informally immediately following the delivery of the judgment or ruling. The applicants did not apply for stay of execution after delivery of the ruling dated 20th December, 2016. They instead filed a formal application to this court. The provisions of Order 42 rule 6 envisage a situation whereby an appeal has been filed. It is therefore anticipated that before the filing of an application for stay of execution to the superior court, an appeal would have been filed.

14. In the case of Equity Bank vs Westlink MBO Limited [2013] eKLR the Court of Appeal said thus:-

“At the stage of determining an application under Rule 5 (2) (b) there may be no actual appeal. Where there is no actual appeal already lodged there nevertheless must be an intention of appeal which is manifested by lodging a notice of appeal. If there is no notice of appeal lodged; one cannot get an order under Rule 5 (2) (b) because … jurisdiction of the Court of Appeal is invited to hearing appeals from the High Court and if there is no appeal or intention to appeal as manifested by lodgment of the notice of appeal, the Court of Appeal would have no business to meddle in the business of the High Court.”

15. The provisions of rule 5 (2) (b) of the Court of Appeal rules are to some extent akin to those of Order 42 rule 6 (1) of the Civil Procedure Rules with regard to the requirement of filing a notice of appeal in the appellate court and the filing of an appeal in the High Court before making formal applications for stay of execution. Therefore in the absence of a memorandum of appeal filed by the applicants, this court would be acting without jurisdiction by granting the orders sought. To put it in other words, the applicants have put the cart before the horse. I therefore find that the application before me has been made prematurely. In view of the foregoing circumstances, I hold that the application before me is unmerited. The application is hereby dismissed. Costs of this application are awarded to the respondent.

DELIVERED, DATED and SIGNED at MOMBASA on this 13TH DAY of JULY, 2017.

NJOKI MWANGI

JUDGE

In the presence of:-

Applicants present in person

Mr. Oluga for the respondent

Mr. Oliver Musundi - Court Assistant