[2023] KEHC 26527 (KLR)

Kahome v Momanyi (Miscellaneous Application E468 of 2020) [2023] KEHC 26527 (KLR) (Civ) (8 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26527 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Miscellaneous Application E468 of 2020

DAS Majanja, J

December 8, 2023

Between

Stephen Ngari Kahome

Applicant

and

Ongeta Hesbon Momanyi

Respondent

Ruling

1. On 16. 10. 2023, I allowed the Applicant’s application dated 17. 10. 2022 seeking to execute the decree herein by way of arrest and committal to civil jail. I observed as follows:Although the Respondent disputes that there is a judgment and decree in the matter or that in fact it cannot be enforced, the record is clear that by a ruling dated 23. 02. 2021, Chitembwe J adopted the decision of the Advocates Disciplinary Tribunal ordering the Respondent to pay Kshs 500, 000. 00 together with interest thereon …… The decree judgment entered by the court is unequivocal on what the Respondent, as an officer of the court, must pay. He must now pay the amount as directed by the court and no cause having been shown, the application dated 17. 10. 2022 is allowed as prayed. The Respondent shall pay costs of the application assessed at Kshs 10,000. 00.

2. It is the aforesaid order that has precipitated the Respondent’s application dated 18. 10. 2023 seeking, principally, an order of stay of execution or implementation of the orders made on 16. 10. 2023 and further proceedings pending the hearing and determination of the intended appeal from that order. The application is supported by the Respondent’s supporting and further affidavits sworn on 18. 09. 2023 and 27. 11. 2023 respectively. It is opposed by the Applicant’s affidavit sworn on 01. 11. 2023. Both parties filed written submissions which I have considered.

3. Among the prayers sought by the Respondent is a request that the matter be allocated to another judge by the Presiding Judge. When I directed him to file an application for my recusal, he failed to so and informed the court that he was no longer interested in pursuing the recusal. The issue for consideration then, is whether the court should stay execution or further proceedings pending appeal from the order of 16. 10. 2023.

4. A little context is necessary. On 17. 04. 2022, the Advocates Disciplinary Tribunal ordered the Respondent to deposit Kshs 540,000. 000 with interest thereon at 12% p.a from 12. 02. 2014 for onward transmission to the Applicant. In due course, the Applicant moved this court for leave to be allowed to execute the order of the Tribunal and by the ruling dated 23. 02. 2021, Chitembwe J, allowed the Applicant’s application to enforce the decision of the Tribunal as an order of the court. As a result of this order, the Applicant moved by the application dated 17. 10. 2023. seeking to execute the Tribunal decision. It is the resulting order that the Respondent now seeks to stay.

5. Whether the court should order stay of execution is within the court’s discretion. It is important to note that the Respondent’s appeal; Ongetta Hesbon Momanyi v Advocates Disciplinary Tribunal; Stephen Ngaru Kahome (Interested Party) HCCA No 698 of 2016 [2021]eKLR against the Tribunal judgment was dismissed and struck out by a ruling dated 24. 11. 2021 (Sergon J). Further and earlier on, the Respondent had already benefitted from an order of stay dated 17. 10. 2018 issued by Jaden J, in Ongetta Hesbon Momanyi v Advocates Disciplinary Tribunal &another HC Misc. Appl. No 71 of 2016 [2018] eKLR directing the Respondent to deposit Kshs 520,000. 00 in a joint account within 30 days. This has not been done.

6. Under Order 46 rule 6 of the Civil Procedure Rules, a party seeking the grant of an order of stay of execution pending appeal must show sufficient cause, demonstrate that he will suffer substantial loss unless the order of stay is granted, offer security and move the Court without unreasonable delay. I would add that since this a discretionary remedy, the court is entitled to consider the conduct of the parties and determine whether it is equitable to issue the order (see Butt v Rent Restriction Tribunal [1982] KLR 417).

7. The Respondent has not demonstrated sufficient cause as he has already benefitted from the court’s discretion and has failed to comply with the order of stay issued in his favour. Further, the stay is consequential upon an adoption of the Tribunal judgment. The Respondent has not appealed against that judgment. I also adopt what the Chitembwe J, stated in the ruling dated 23. 01. 2021:The current position is that the Tribunal ordered the respondent to pay Kshs 500,000. This was in 2015. The ruling of Justice Thuranira directed the respondent to deposit the money in a joint interest earning account. This was in October, 2018. It is now over two years from that ruling and no deposit has been made. The decision of the Tribunal was done in December, 2015 while the appeal was filed on 17thNovember, 2016. Nothing has happened in between. I do find that the respondent has had ample time to challenge the decision of the Tribunal. Equally, he has not complied with the order of Justice Thuranira to deposit the money in a joint account. I do find that the application herein is merited and is hereby granted as prayed.

8. It is now almost three years later and nothing has changed. The Respondent’s application dated 18. 10. 2023 is dismissed. The Respondent shall pay costs of the application assessed at Kshs 15,000. 00.

DATED AND DELIVERED AT NAIROBI THIS 8TH DAY OF DECEMBER 2023. D. S. MAJANJAJUDGECourt Assistant: Mr M. OnyangoMr Kigen instructed by Wesonga, Mutembei & Kigen Advocates for the Applicant.Mr Momanyi instructed by O. H. Momanyi Advocates for the Respondent.