[2022] KEHC 1610 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL APPEAL NO. E704 OF 2021

JOASH MOSOTI MOSE...................................................................................APPELLANT

VERSUS

AYTON VERNON JOHN........................................................................1ST RESPONDENT

JAMES KARUGA KIMANI..................................................................2ND RESPONDENT

GEORGE KIRUBA NJAU.......................................................................3RD RESPONDENT

RULING

1. The appellant/applicant in this instance has brought the Notice of Motion dated 19th October 2021 supported by the grounds set out in its body and the facts stated in the affidavit of Joash Mosoti Mose. The applicant sought for the substantive order for stay of execution of the judgment/decree and proceedings in Milimani CMCC NO. 5193 OF 2014 pending the hearing and determination of the appellant’s Appeal.

2. In opposing the said Motion, the respondent filed the replying affidavit of Muturi Kamande to which Joash Mosoti Mose rejoined with his further affidavit sworn on 30th November, 2021.

3. When the Motion came up for interparties hearing before this court, the parties respective advocates chose to rely on the averments made in their respective affidavits. I have considered the grounds laid out on the body of the Motion, the facts deponed in the affidavits supporting and opposing the Motion.

4. A brief background of the matter is that the 1st respondent instituted a suit against the appellant, 2nd and 3rd respondent vide the plaint dated 2nd September, 2014 and sought for general damages arising out of material damage accident.

5. Upon hearing the parties, a consent judgment was recorded on 30th May 2017 awarded the 1st respondent an aggregate sum of Kshs.762,813/= as damages plus costs of the suit and interest at court rates as well as a stay of execution of 30 days.

6. The appellant requested for extension of interim orders pending the hearing and determination of his application of stay of execution dated 29th September 2021 but the learned Magistrate declined to extend the said orders. Being aggrieved by the aforementioned decision, the applicant appealed to this court against the lower court’s ruling.

7. In his affidavit filed in support of the motion dated 19/10/2021, Mr. Joash Mosoti Mose stated that when his application came up for inter parties hearing on the 6th October 2021, they were given a mention on the 1st November 2021 to confirm filing of the written submissions and that his advocates requested an extension of interim orders that had been granted on the 1st October 2021, but the Learned Magistrate declined without any justifiable reasons to extend the same.

8. He avers that without the interim extensions orders in place he is exposed to the execution process which had already commenced through Little Vineyards Auctioneers and that he shall suffer the greatest prejudice if the application dated 29th September 2021 and the appeal herein are not heard on merit. He further avers that he is a complete stranger to the proceedings of Milimani CMCC no. 5193 of 2014 on account that he is neither the registered owner nor the insured of Motor Vehicle which is alleged to have caused the material damage accident.

9. He contends that he only became aware of the said matter on 27th September 2021 when he was served with proclamation notice by the auctioneers and that he has never been served with summons and he has never instructed the firm of J.W Wambua & Co. Advocates to represent him.

10. He further stated that the counsel for the 2nd and 3rd respondent indicated that they had been instructed by AMACO Insurance Company Limited to enter appearance for all the defendants but to date they have not filed a response to the said application to demonstrate how and when they were instructed.

11. He avers that he was advised by his advocates that they were properly on record since he had not instructed any firm of advocates to represent him in the said matter at all.

12. In response, Mr. Muturi Kamande stated that the applicant was at all material times represented by the said Law firm of J.W Wambua & Co. Advocates at the Lower Court and that his present advocates filed the application for stay of execution dated 29. 9.2021 upon which interim orders were granted pending the interparties hearing on 6. 10. 202.

13. He further stated that when the application came up for hearing the issue that the Applicant’s advocates were improperly on record as they had neither obtained leave of court to replace the applicant’s said former advocates nor had they obtained the said former advocates consent to act as required under Order 9 Rule 9 of the Civil Procedure Rules 2012.

14. He avers that the learned Magistrate after ascertaining that the applicant’s advocates were not properly on record she declined to extend the interim orders as the said request for extension was being made by a stranger in the case or by a person who was not on record.

15. The guiding provision in considering an application seeking an order for a stay of execution is Order 42, Rule 6(2) of the Civil Procedure Rules which sets out the following conditions in determining an application for stay:

i. The application should have been brought without unreasonable delay;

ii. The applicant must demonstrate the substantial loss to be suffered; and

iii. There must be provision of security for the due performance of the decree or order being appealed against.

16. On the condition of substantial loss, which is the cornerstone inan application for stay. The appellant/applicant in this matter avers that without the interim orders in place he is exposed to the execution process which had already commenced.

17. The appellant/applicant is apprehensive that if the orders sought herein are not granted the application before the trial court and the appeal shall be rendered nugatory and an academic exercise if the execution process is not halted.

18. In the case of Masisi Mwita v Damaris Wanjiku Njeri [2016]eKLRin which the court reasoned that:

“The corner stone of the jurisdiction of the court under Order 42 of the Civil Procedure Rules is that substantial loss would result to the applicant unless a stay of execution is granted… 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.”

19. On the hand the Respondents stated that the reasons why the interim orders were not granted was because the advocates for the applicants were not properly on record and that the appeal should be dismissed as amounting to abuse of court process.

20. The applicants contends that that his advocates are properly on record since he had never instructed any advocates and further to that he had never been served with the summons for the material damage accident .He further contends that he only knew about this matter once he was served with the warrants by the auctioneers and decided to do the said application for stay of execution dated 29th September 2021.

21. I am satisfied that the applicant has reasonably demonstrated the manner in which it stands to suffer substantial loss.

22. A perusal of the memorandum of appeal shows that the Applicant is appealing against the declining to extend interim orders and denying the applicant his day in court.

23. I am also alive to the reality that unless the applicant is granted an opportunity to defend its case, it stands to be condemned unheard, thereby undermining the dictates of substantive justice and violating the applicant’s constitutional right to be heard on its defence in the dispute before the same is conclusively determined.

24. As In Harit Sheth Advocate -vs- Shamas Charania – Civil Appeal No. 68 of 2008, this Court held:-

“The principal aims of the overriding objective include the need to act justly in every situation; the need to have regard to the principle of proportionality and the need to create a level playing ground for all the parties coming before the courts by ensuring that the principle of equality of arms is maintained and that as far as it is practicable to place the parties on equal footing.”

25. In the end therefore, the Motion dated 19th May, 2020 is found to be meritorious and it is allowed, therefore giving rise to a grant of the following orders:

i. There shall be a stay of execution of the judgment /decree and proceeding in Milimani CMCC NO.5193 of 2014 pending appeal.

ii.Costs of the Motion to abide the outcome of the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 10TH DAY OF MARCH, 2022.

.........................

J. K. SERGON

JUDGE

In the presence of:

................................... for the Appellant

.................................for the Respondent