[2020] KECPT 78 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. 369 OF 2010

JOHN MUHORO NJORE ...............................................................CLAIMANT

VERSUS

NANASI HOUSING

CO-OPERATIVE SOCIETY LIMITED...........................1ST RESPONDENT

MARGARET WAIRIMU MBIRUA.................................2ND RESPONDENT

JUDY MWIHAKI KINYUA...............................................3RD RESPONDENT

RULING

What is before us for consideration and determination are two Applications; one by the 3rd Respondent dated 8. 3.2019 and the other by the 1st and 2nd Respondents dated 13th November 2018.

Vide the directions issued by the Tribunal on 29. 7.2019, the two Applications will be determined together. We will begin with the1st and 2nd Respondent’s Application dated 13. 11. 2018.

1st and 2nd Respondent’s Application dated 13. 11. 2018.

This Application seeks for orders, inter alia, that there be a stay of execution of the Judgment entered on 10. 8.2018, decree therefrom and all consequential Orders pending the hearing and determination of the Application for leave to Appeal out of time dated 9. 10. 18.

The Application is based on the grounds on its face and the Supporting Affidavit of the 1st Respondent’s Chairman, Simon Mbirua Karangu on even date 13. 11. 2018.

It is the 1st and 2nd Respondent’s case that they have filed an Application for leave to Appeal out of time against the Judgment delivered on 9. 10. 2018. That before the said Application can be heard and determined, there is need for an order of stay of execution of the said Judgment to be granted. That if stay is not granted, the said Application will be rendered nugatory. That the subject matter is land and that they will suffer irreparably as the 2nd Defendant’s name will be cancelled from the land Registrar of the parcel of land at Thika.

The Claimant has opposed the Application by filing a Replying Affidavit sworn by himself on 22. 1.2019, vide this response, the claimant opposes the Application based on the following grounds;

a. That the same has been brought after a long an –unexplained delay of five (5)months;

b. That the Application does not satisfy the conditions set out in order 22 Rule 22 and order 42 Rule of the Civil Procedure Rules;

c. That the Applicant has not offered any security or bond as a condition for the orders sought;

d. That no Appeal has been filed yet; and

e. That the 1st and 2nd Respondent will not suffer any prejudice or harm if the orders are executed.

Written submissions

1st and 2nd Respondent’s written submissions

Vide their written submissions filed on 30. 8.2019, the 1st and 2nd Respondents have reiterated their averments above and further state as follows;

a. That the Tribunal has jurisdiction to grant the orders sought in terms of order 42 Rule 6 (2) of the Civil Procedure Rules;

b. That they will suffer substantial loss if the decree is executed as the suit land will be registered in the name of the Claimant;

c. That cancellation of the title will occasion substantial loss to the 3rd Respondents;

d. That the Application has been filed without undue delay. That the application is dated 13. 11. 2018;

e. That the delay to file an Appeal in the High Court was occasioned by the Tribunal with regard to issuance of certified copies of the judgment and proceedings; and

f. That the claimant will not suffer any prejudice if the stay is granted.

Claimant’s Submissions

The Claimant, vide his submissions filed on 1/10/2019, reiterated his averments above. Further, he contends that the Instant Application is just a ploy by the 1st and 2nd Respondents to deny him the fruits of his judgment.

Issues for determination

The 1st and 2nd Respondent’s Application dated 13. 11. 2018 has raised the following issues for determination:

a. Whether the 1st and 2nd Respondents have laid a proper basis to warrant an order of stay of execution of the Judgment delivered on 10. 8.2018;and

b. Who should bear the cost of the ApplicationStay of execution of Judgment

The legal basis for grant of stay pending Appeal is Order 42 Rule 6 of the Civil Procedure Rules.

The Rule provides thus;

“No order of 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.”

The above principles were restayed by the court in the case of Chris Munga N. Bichage Vs Richard Nyagaka Tongi & 2 Others as follows;

“.........the law as regards application for stay of execution, stay of proceedings or injunction is now well settled. The Applicant who would succeed upon such Application must persuade the court on two limbs, which are first, that his Appeal or intended Appeal is arguable, that is to say, it is not frivolous; secondary, that, if the Application is not granted, the success of the Appeal, were it to succeed, would be rendered nugatory. These two limbs must both be demonstrated and it would not be enough that only one is demonstrated. ....”

In the case of M/S Porteitz Maternity Vs James Karangu Kabia Civil Appeal No. 63/1997, the court held thus;

“the right of Appeal must be balanced against an equally weighty right, that for the plaintiff to enjoy the fruits of the judgment delivered in his favour. There must be a just cause for depriving the plaintiff of that right......”

From the wording of order 42 Rule 6 (2) and the principles, laid down in the above cases, it is apparent that for an Application for stay of execution of Decree or Judgment to succeed, the applicant must demonstrate the following;

a. That substantial loss may result if stay is not granted; and

b. That the Application must be brought without unreasonable delay.

Loss

We have considered the submissions of the 1st and 2nd Respondents in this regard. They contend that a decision to cancel title to property L.R.14/597 to the 3rd Respondent has been made and that it has expressed desire to challenge it by filling an Application for leave to file an Appeal out of time at the Kiambu Law Courts.

On the other hand, the Claimant contend that the Respondents will not suffer any prejudice if the judgment is executed.

The issue in dispute in the matter revolve around ownership of land. The Claimant sued the 1st and 2nd Respondents for unlawfully conferring title for the said land to the 3rd Respondent. The Claimant succeeded in his case but the 1st and 2nd Respondents have opted to Appeal. However, a substantive Appeal has not been filed and the 1st and 2nd Respondents want an order of stay to be granted.

From our appreciation of the facts on record, the kind of prejudice the 1st and 2nd Respondents will suffer is that of cancellation of the title to the said property. In our view, if the Appeal were to be filed and eventually succeed, there is no doubt the 1st and 2nd Respondents will suffer irreparable loss.

The Claimant has accused the 1st and 2nd Respondents of filing the Application late in the day. That it took them 5 months to do so. On the other hand, the 1st and 2nd Respondents contend that it has filed the Application without unreasonable delay. That upon delivery of judgment in the matter on 10. 8.2018, it applied to be supplied with certified copy of proceedings vide the letter dated 11. 8.2018. That subsequently, the said proceedings were supplied on 11. 10. 20. That by this time, their time limited for lodging an appeal in the High Court had lapsed. That they then had to file an Application for leave to Appeal out of time. That they did so on 8. 11. 2018.

We have considered the material placed before us as regards the time taken from delivery of Judgment on 10. 8.2018 to securing of typed proceeding on 1. 10. 19 and eventual filing of an Application for leave to Appeal on 8. 11. 2018. We are satisfied that the 1st and 2nd respondents are not to entirely blame for delay in filing the Appeal as the proceedings were supplied after the time for closing so had expired.

The question relevant to these proceedings regards the time the 1st and 2nd Respondents took to file the Instant Application after receiving the typed copy of the judgment and proceedings. It is apparent that the proceedings were supplied on 1. 10. 2018 and the instant application was filed on 13. 11. 2018. This is a period of 1 month 13 days. Can it be said that this period is too long to found the Instant Application? Our answer is in the negative. We find that the 1st an d 2nd Respondent have brought the instant Application without unreasonable delay

The 3rd Respondent’s Application dated 8. 3.2019.

This Application seeks for the following orders:

1. That this application be certified urgent and be heard ex-parte in the first instance.

2. That his Honourable Court be pleased to grant stay of execution of the judgment entered on 10. 8.2018, decree and/or consequential orders and/or stay of further proceedings in this suit pending the interparties hearing and determination of this application;

3. That this Honorable Court be pleased to set aside default judgment and all consequential orders entered against the 3rd Respondent in this suit;

4. That this Honorable Court be pleased to grant leave to the 3rd Respondent/Applicant to defend this suit out of time as per annexed draft defence and the same be deemed duly filed and served upon payment of the requisite fee thereof; and

5. That costs of this application be provided for.

It is supported by the grounds on its face and the Supporting Affidavit of the 3rd Respondent sworn on 8. 3.2019.

The gist of the said Application is that she was not served with the statement of re-amended claim and summons to enter Appearance. That the orders subsequently made by the court are adverse to her.

The Claimant has opposed the Application by filing a Replying Affidavit sworn by himself on 20. 5.2019. Vide the said response, the Claimant content that the 3rd Respondent was duly served with summons to enter appearance vide substituted service, that is, Daily Nation issue No. 4/4/2014 but failed to enter appearance and/or file defence.

That the Application is an abuse of the court process as it has been filed 7 months after delivery of judgment.

That before service of summons through newspaper, advertisement, the claimant filed an Application to do so. That the only recourse left for the 3rd Respondent is to seek recourse from the 1st and 2nd Respondents.

This Tribunal has jurisdiction to set aside a default judgment by dint of Order 10 Rule 11 of the Civil Procedure Rules which provides that;

“where judgment has been entered under this order, the court may set aside or vary suit judgment and any consequential decree or order upon such terms as are just”

It thus follow that the Tribunal exercises its jurisdiction above so as to do justice to the parties. This position was restated by the court in the case ofPatel vs East Africa Cargo Services Ltd (1974) E.A 75in the following terms.

“ The main concern of the court is to do justice to the parties and the court will not impose conditions on itself to fetter the wide discretion given to it by the Rules”.

The court in the case of James Kanyitta Nderitu & Another Vs Marios Philotas Ghikas & Another[2016] eKLR set out the conditions that must be fulfilled before default judgment can be set aside. They include.

a. The reason for failure to file a Memorandum of Appearance , or defence;

b. The length of time that has elapsed since the default judgment was entered;

c. Whether the intended defence raises triable issues;

d. The respective prejudice each party is likely to suffer; and

e. Whether, in the whole, it is in the interest of justice to set aside the default judgment....

We consider the above principle, individual as follows;

Reason for failure to enter appearance or file a defence.

It is the 3rd Respondent’s case that she was not served with summons to enter appearance.

We disagree with her and find that she was duly served with summons to enter appearance. When it was not possible to serve her personally, the claimant filed an Application for leave to serve her by way of Newspaper Advertisement. The same was granted and was thus served vide Daily Nation issue of 4. 4.2014.

Length of time

The instant Application was filed on 26. 4.2019 while the Judgment in the matter was delivered on 10. 8.2018. This is a period of approximately 8 months since the said judgment was delivered. The 3rd Respondent has not given any explanation as to why she took such a long period of time to file he said Application. In light of this, we therefore find that the delay in filing the Application was inordinate.

Defence raising triable issues

We have perused the draft defence attached to the application. We note that the issues raised therein are similar to those raised by the 1st and 2nd Respondent in their statement of defence dated 7. 3.2011 and amended on 4. 4.12 and also during their evidence at the time the suit was heard. In the circumstances, we find that the said draft defence does not raise triable issues and more so that the Tribunal has delivered judgment on the matter.

Prejudice

The 3rd Respondent contend that she will suffer prejudice if the Application is not granted. In lieu of our findings above, we find that she has not demonstrated any prejudice she will suffer.

Conclusion

The upshot of the foregoing is that we find merit in the 1st and 2nd Respondent’s application dated 13. 11. 2018 and allow it on terms that we grant stay of execution of judgment dated 10. 8.2018 together with its consequential orders and/or Decrees until the hearing and determination of the application filed in Kiambu High Court being MISC. APPL. NO. 218/2018. Each party to bear own costs of the application .

Consequently, the 3rd Respondent’s Application dated 8. 3.2019 is hereby dismissed with no orders as to cost.

Read and delivered in an open court this 26th day of February2020

In the presence of ;-

Claimant : No appearance

Respondent : No appearance

3rd Respondent/Applicant : Gacheru Advocate Present

Court Assistant : Charles Maina

Hon. B. Kimemia - Chairman Signed

Hon. F. Terer - Deputy Chairman Signed

P. Swanya - MemberSigned