[2022] KEHC 16252 (KLR)

Kenya National Capital Corporation Limited v Galot & 5 others (Commercial Miscellaneous Application E764 of 2022) [2022] KEHC 16252 (KLR) (Commercial and Tax) (7 December 2022) (Directions)

Neutral citation: [2022] KEHC 16252 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Commercial Miscellaneous Application E764 of 2022

DO Chepkwony, J

December 7, 2022

Between

Kenya National Capital Corporation Limited

Applicant

and

Mohan Galot

1st Respondent

LP Galot

2nd Respondent

SP Galot

3rd Respondent

GP Galot

4th Respondent

Galot Industries Limited

5th Respondent

King Woolen Mills Limited (formerly) Manchester Suiting Division Limited

6th Respondent

Directions

1. On October 24, 2022, this court differently constituted (presided over by Hon Lady Justice Mshila Abigael) granted interim orders for stay of execution pending further directions of the court. The said orders were extended by the same court on November 3, 2022 and on November 9, 2022 respectively and matter set for December 5, 2022 as the hearing date for the respondent’s notice of preliminary objection and the application for stay of execution..

2. Unfortunately, on December 5, 2022 when the matter came up for hearing, the Hon Lady Justice Abigael Mshila was indisposed and the matter was then mentioned before the Hon Deputy Registrar with a view of fixing another hearing date before the honourable judge. However, a dispute ensued between the parties as they could not agree on whether the interim orders substituting herein should be extended or not. They were referred to this court for a deliberation on the said issue and further directions.

3. I keenly listened to submissions by respective counsel for the parties on whether or not to extend the said interim orders. For those opposed to the extension of the interim orders almost similar grounds were advanced which in summary are that: firstly, the interim orders were granted by a court without jurisdiction and it would be misplaced in law for a court to purport to extend interim orders it did not have the jurisdiction to grant; secondly, that by filing the said application in this matter, the applicant had exhibited the standard habit of forum shopping because there are two other applications seeking to stay execution of the same judgment, one being dated November 10, 2022 and filed by the applicant in the main suit being Civil Case No 2054 of 1993 and the second one which is pending before the Court of Appeal vide Civil Appeal No E274 of 2022; thirdly, that the Court of Appeal had applied its mind in the application for stay by the applicant but saw it not fit to grant the exparte orders of stay; fourthly, that if the orders for stay are extended, the court would expose itself to a possibility of granting or arriving at contradictory decisions in view of the matters pending before the Court of Appeal and before the Hon Justice Mabeya respectively.

4. Those in support of the extension of the orders expressed the view that the grounds advanced by the respondents’ counsel amount to arguing the notice of preliminary objection pending in this matter whereas this court is under no mandate to address the merits of any pending issue in the same.

5. Having perused the entire court record, I am persuaded that the submissions made in opposition of the request to extend the interim orders, are the exact submissions that have been tendered in support of the notice of preliminary objection in which the respondents have challenged the court’s jurisdiction and in the same circumstances, the court extended the interim orders twice.

6. In view of this, were this court to consider whether or not to extend the orders vis-à-vis the said challenge on jurisdiction, it would have determined the issue of jurisdiction prematurely. Thus, it is upon the court that issued and extended the interim orders to determine on its jurisdiction over the matter, and will not say more on this issue. All I can do is to beseech the parties to proceed and make the submissions on the issue before the court seized with the conduct of this matter.

7. As for whether the orders in place were obtained without full disclosure of material facts and more specifically the pendency of two other similar applications, being one pending before the High Court, and another before the Court of Appeal, I am of the humble view that the interim orders of stay of execution issue on ex parte basis and are essentially provisional in nature and made on basis of the evidence that will have been adduced by the applicant, notwithstanding the requirement of the applicant to make full disclosure. However, it should be borne in mind that such orders are subject of review at a later stage in light of the evidence and arguments which will be advanced by the opposing side.

8. Having said the above, the court presiding over this matter has the mandate to consider the merit of the arguments made, and thus I am inclined to keep off that realm and leave the same to the preserve of the presiding court.

9. In my view, the key consideration for this court at this stage is what prejudice the parties would suffer if the interim orders in place are extended and vice versa. Better still, this court is equally concerned with the pros and cons of extending the orders but not the merits and validity of the interim orders. It has to be borne in mind that while granting those orders, the court’s interest was to protect the applicant’s rights which were alleged to have been on the verge of being infringed. For the respondents to persuade the court not to extend the orders, they ought to have shown that the orders have occasioned them more prejudice than the applicant so that the interest of justice tilts towards revising and or vacating the orders. The respondents herein have not shown such prejudice. I therefore see no ground for not extending the interim orders pending determination of issues arising or further directions by the court presiding over the matter.

10. In the premises, the orders granted herein on October 24, 2022 respectively, and accordingly extended on November 3, 2022 and November 9, 2022 are hereby extended to March 9, 2023 pending further directions by the court having conduct of this matter, whichever may come earlier.It is so ordered.

DIRECTIONS DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 7TH DAY OF DECEMBER, 2022. DO CHEPKWONYJUDGEIn the presence of:Mr Ndungu holding brief for Mr Kangethe for applicant.M/S Awiti holding brief for M/S Maumo counsel for 1st respondent.No appearance for and by 2nd respondent.Mr Kaka counsel for 4th Respondent and holding brief for Mr Kenyatta counsel for 3rd respondent.M/S Maina holding brief for Mr Tiego counsel for 5th and 6th respondents.Court Assistant - Sakina