[2023] KEHC 25750 (KLR)

John Gachiri Kariuki t/a Gachiri Kariuki & Company Advocates v Voi Development Company Limited (Miscellaneous Civil Application 373 of 2014) [2023] KEHC 25750 (KLR) (21 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25750 (KLR)

Republic of Kenya

In the High Court at Mombasa

Miscellaneous Civil Application 373 of 2014

DKN Magare, J

November 21, 2023

Between

John Gachiri Kariuki t/a Gachiri Kariuki & Company Advocates

Applicant

and

Voi Development Company Limited

Respondent

Ruling

1. On 18/9/2023 Vinu Ramji Shah, filed an application for stay pendign Appeal states that he will suffer irreparable harm if the application is not allowed. It is supported by the affidavit of the applicant. In that affidavit, the applicant states that the court tilted the corporate veil. That he filed a notice of Appeal on 6/4/2023 and bespoke proceedings. They state that the advocates sought leave to Appeal.

2. Proclamation was earned out on 14/8/2023. That objection proceedings were instituted by Shah Brothers Ltd.

3. That execution is imminent. That the applicant states that he has the financial capacity to settle the decretal sum. The application related to objection that they referred to was compromised. What is sought to be stayed is not the main decree. The decree is still in situ. It is surprising that this application could be made. the application is not against the decree but as part of execution.

4. By granting stay, it basically means staying the lifting the corporate veil. The court is bound to consider order 42 Rule 6 of the Civil Procedure Rules. It provides as doth: -“6. Stay in case of appeal1)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 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.(4)For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given.(5)An application for stay of execution may be made informally immediately following the delivery of judgment or ruling.(6)Notwithstanding anything contained in subrule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.

5. In this case, the order does not require execution. It is a negative order. The only thing the Applicant was to produce to avoid execution, is production of the records of the company wherein they are directors.

6. Execution cannot be stayed when there is no challenge to the main Decree.

7. I cannot stay execution of a decree which had not been appealed from. It turns out that the defendant is not a sham, then it is the defendant to refund its directors and not the Applicant. In that case the applicant only needs to sit with other directors and authorise payment of the judgment sum. There is no decree that is capable of execution that has been appealed from.

8. Section 75(1) of the Civil Procedure Act provides for the orders against which an appeal would lie as of right and/or with the leave of the court. It provides thus:75(1)An appeal shall lie as of right from the following orders, and shall also lie from any other order with the leave of the court making such order or of the court to which an appeal would lie if leave were granted-(a)An order superseding an arbitration where the award has not been completed within the period allowed by the court;(b)An order on an award stated in the form of a special case;(c)An order modifying or correcting an award;(d)An order staying or refusing to stay a suit where there is an agreement to refer to arbitration;(e)An order filing or refusing to file an award in an arbitration without the intervention of the court;(f)An order under section 64;(g)An order under any of the provisions of this Act imposing a fine or directing the arrest or detention in prison of any person except where the arrest or detention is in execution of a decree;(h)Any order made under rules from which an appeal is expressly allowed by rules.

9. I cannot also recall granted leave to appeal in the circumstances this court has no jurisdiction to grant stay without an appeal. In the case of Serephen Nyasani Menge v Rispah Onsase [2018] eKLR, Justice J. M. Mutungi stated as doth: -“Order 43 Rule (1) of the Civil Procedure Rules sets out the orders and rules in respect of which appeals would lie as of right. Under Order 43(2) it is provided that an appeal shall lie with the leave of the court from any other order made under the Rules. This means that unless the order sought to be appealed against falls under the orders which are appealable as of right under Order 43(1) leave to appeal must be obtained before such an appeal can be preferred. The procedure for obtaining leave is provided under Order 43(3) which states as follows:-(3)An application for leave to appeal under Section 75 of the Act shall in the first instance be made to the court making the order sought to be appealed from, either orally at the time when the order is made, or within fourteen days from the date of such order.

10. In the circumstances the application dated 18/9/2023 is unmerited. I also note that the same was brought after laches. The decision was made in March 2023.

11. However, the Application was made in September, aa period of 6 months. I am satisfied that the application is an afterthought. The Applicant should pay, as he says he is capable and follow the Defendant for a refund. Otherwise it will mean the court was correct in stating that the Respondent judgment debtor was a sham.

12. In the circumstances I dismiss the application filed by Viinu shah dated 18/9/2023 with costs of 30,000/= payable to the Ms Gachiri Kariuki & Company Advocates within 21 days. Meanwhile, execution should proceed as ordered in the Ruling of this court given on 24/3/2023.

Determinationa.The application dated 18/9/2023 and filed by the Vinu is dismissed with costs of 30,000/= payable to Gachiri Kariuki and company advocates within 21 days.b.Meanwhile execution to pored as ordered in the Ruling of 29/3/2023. c.The file is closed.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 21ST DAY OF NOVEMBER, 2023. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:Mr. Origi for Decree holderMr. Asige for KatakMr. Onduso for the estate of Mwanuya and the RespondentMs Barasa for Vinu ShahCourt Assistant - Brian