[2023] KEHC 26495 (KLR)

Katuku v Nzolove (Suing as the Legal Administrator of the Estate of the Late Benedict Musyoki Mutemi) (Miscellaneous Civil Application E190 of 2023) [2023] KEHC 26495 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26495 (KLR)

Republic of Kenya

In the High Court at Machakos

Miscellaneous Civil Application E190 of 2023

FROO Olel, J

December 14, 2023

Between

John Mutua Katuku

Appellant

and

Anne Mueni Nzolove (Suing as the Legal Administrator of the Estate of the Late Benedict Musyoki Mutemi)

Respondent

Ruling

A. Introduction 1. The application before this court is the Notice of Motion application dated 9th November 2021 brought pursuant to provisions of Article 50, 159(d) and 165(3)(e) of theconstitution of Kenya 2010, Section 1A, 1B, 3A & 75 of the Civil Procedure Act, Order 42 rule 6. Order 43 rule 1 and Order 51 rule 1 of the Civil Procedure Rules, Section 5(b) of the Insurance (Motor vehicle Third party Risks) Act and all other enabling provision of law. The applicant seeks for orders that:a.That the Honourable court be pleased to stay further proceedings in the primary suit Machakos Civil suit No 714 of 2017 pending the hearing and determination of the intended Appealb.That pending the hearing and determination of the intended appeal against the ruling of Honourable M.A. Otindo delivered on 12. 09. 2023, the Honourable court be pleased to stay the execution of the decree in the primary suit Machakos civil suit No 714 of 2017c.That costs of this application be provided for.

2. The application is supported by the grounds on the face of the said application and the supporting affidavit of the appellant John Mutua Katuku, who depones that judgement was entered as against him on 03. 03. 2021 in Machakos Civil Suit No 714 of 2017, where he was held 100% liable and General damages were assessed at Kshs 7,027,480/= plus costs and interest. He was unaware of the said judgment as he was not informed of the same by his previous advocate and was only woken up from his slumber when proclaimed by Ruol Auctioneers.

3. Further it was the applicant’s contention, that as at the time of the accident, he had a valid insurance cover, and they were bound to settle all claims arising from the said accident. Having failed to satisfy the judgment sum, he opted to file a declaratory suit as against his insurer being Machakos CMCC No. 228 of 2023 to compel the said insurance company to meet its contractual obligations. Simultaneously the applicant also did file an application for stay of execution pending hearing and determination of the declaratory suit, which application was dismissed on 12. 09. 2023 hence the filing of this appeal and instant application.

4. The applicant averred that his appeal raised serious arguable issues and had high chances of success. That unless stay of execution was granted, he would suffer substantial and irreparable loss if the decision of the trial magistrate was left to stand. The applicant further averred that he was willing and ready to provide security as maybe directed by court and that the respondent would not suffer any prejudice should the application be allowed. The application had been brought forth without undue delay and it was in the wider interest of justice to grant the orders so sought.

5. The respondent filed her replying affidavit dated 17th October 2023 opposing this application. She averred that the applicant was aware of initial judgment as he was notified of the same vide a letter dated 06. 04. 2021 sent by her advocate to the applicants advocate.The applicant failed to settle the decretal amount and upon execution process being levied, the applicant applied for stay of execution, which application was dismissed hence this appeal. The appeal as filed did not raise any triable issue and the orders sought could not be granted as stay of execution could only be granted where there was a pending appeal. In this instance there was no appeal pending with respect to the decree issued in Machakos Civil Suit No. 714 of 2017 and the applicant had failed to meet the basic parameters of granting orders of stay pending appeal.

6. Finally, the respondent also averred that she had waited to enjoy the fruits of her judgment for over two years and it was unfair to keep her away from enjoying the fruits of her judgment. The applicant had not demonstrated what substantial loss he would suffer if stay is not granted and thus his application ought to be dismissed with costs.

Analysis & Determination 7. I have carefully considered the Application, Supporting Affidavit, the Respondent’s Replying Affidavit and discern that the issues which arise for determination is whether this court should stay further proceedings in the primary suit Machakos Civil Suit No. 714 of 2017 and further grant an order of stay of execution of the judgment delivered there in dated 03. 03. 2021 and/or of the ruling/order dated 12/09/2023.

8. In William Odhiambo Ramogi & 2 Others v the Honourable Attorney General & 3 Others [2019] eKLR, a 5-judge Bench of the High Court, after looking at our jurisprudential scan on the question of stay of proceedings, authoritatively laid out the principles our Courts have established for the grant of stay of proceedings pending the hearing and determination of an appeal over an interlocutory application to a higher Court. See Kenya Shell Limited v Benjamin Karuga Kibiru & Another [1986] eKLR; Global Tours & Travels Limited (Nairobi HC Winding Up Cause No. 43 of 2000); David Morton Silverstein v Atsango Chesoni [2002] eKLR: They laid down the following six principles:a.There must be an appeal pending before the higher Court;b.where such stay is sought in the Court hearing the case as opposed to the higher Court to which the Appeal has been filed and there is no express provision of the law allowing for such an application, the Applicant should explain why the stay has not been sought in the higher Court. This is because, due to the potential of an application for stay of proceedings to inordinately delay trial, there is a policy in favour of applications for stay being handled in the Court to which an appeal is preferred because such a Court is familiar with its docket and is therefore in a position to calibrate any order it gives accordingly;c.The Applicant must demonstrate that the appeal raises substantial questions to be determined or is otherwise arguable;d.The Applicant must demonstrate that the Appeal would be rendered nugatory if the stay of proceedings is not granted;e.The Applicant must demonstrate that there are exceptional circumstances which make the stay of proceedings warranted as opposed to having the case concluded and all arising grievances taken up on a single appeal; andf.The Applicant must demonstrate that the application for stay was filed expeditiously and without delay.

9. Further In the words of Ringera J. in Global Tours & Travels Limited (Nairobi HC Winding Up Cause No. 43 of 2000):“As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of Justice.....the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously (emphasis added)”

10. What emerges from the discussion above is that the grant of a stay of proceedings pending the hearing of an interlocutory appeal in civil matters is a rare and exceptional remedy. As a general matter, an appellate court will only exercise its discretion to grant a stay of proceedings pending an appeal over an interlocutory matter before a magistrate’s Court or Tribunal only in exceptional circumstances. While difficult to determine with mathematical precision when the Court will use this power, it is only to be sparingly used where, in the words of South African authors, Gardiner and Lansdown (6th Ed. Vol. 1 p. 750),“grave injustice might otherwise result or where justice might not by other means be attained.” As the authors correctly write, the Court will generally “hesitate to intervene, especially having regard to the effect of such a procedure upon the continuity of proceedings in the Court below.”

11. First and foremost, there is no appeal filed or pending with respect to the decree issued in MACHAKOS CIVIL SUIT NO. 714 of 2017. Secondly the applicant has not demonstrated the exceptional circumstances which exist that would make granting of the orders of stay of proceedings warranted. Even the pendency of the declaratory suit does not change the fact herein that there is no interlocutory application or appeal pending and the existence of a secondary declaratory suit cannot be used to stay the decree in the primary suit.

12. The second prayer sought by the applicant was for an order of Stay of execution pending appeal which governed by Order 42 Rule 6 of the Civil Procedure Rules. It is evident from the said provision that power to grant stay of execution pending appeal is an exercise of discretion of the court on sufficient cause being shown by the Applicant that substantial loss may result to the applicant if the orders are denied; the application should be made without undue delay and the court will impose such security as the court may impose for the due performance of any decree or order as may ultimately be binding on the Applicant.(see Butt Vs Rent Restriction Tribunal (1982) KLR 417 and James Wangalwa & Another Vs Agnes Nalika Chereto (2012) eKLR)

13. As already stated above herein, there is no appeal filed as against the judgment dated 03. 03. 2021 issued in Machakos Civil Suit No. 714 of 2017. That being so, it is obvious that this court is divested of jurisdiction to further consider the other parameters as to whether stay of execution should be granted with respect to the said decree. With respect to the order dated 12. 09. 2023, it is a negative order. It was simply dismissing the application dated 13th June 2023. One cannot stay a negative order.

14. In Kaushik Panchamatia & 3 others Vs Prime Bank Limited &Ano. (2020) Eklr, the court of appeal stated that;“that a negative order is incapable of being stayed because there is nothing to stay. It therefore follows that in light of the above threshold we have no mandate to grant stay order in the manner prayed for by the applicants”.

Dispostion 15. Taking all relevant factors into consideration I do find that the application dated 11th October 2023 lacks merit and the same is dismissed with costs to the respondent.

16. The costs are hereby assessed as Ksh.25,000/= all inclusive.

17. It is so ordered.

READ, SIGNED AND DELIVERED VIRTUALLY AT MACHAKOS ON THIS 14TH DAY OF DECEMBER, 2023. FRANCIS RAYOLA OLELJUDGEIn the presence of:-Mr. Munyao for the AppellantMs Kiu for the RespondentSusan/Sam Court Assistant