[2022] KEHC 16159 (KLR)

Kenya Qatardiaspora Sacco Society v Obiero (Miscellaneous Civil Case E523 of 2021) [2022] KEHC 16159 (KLR) (9 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16159 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Miscellaneous Civil Case E523 of 2021

JK Sergon, J

December 9, 2022

Between

Kenya Qatardiaspora Sacco Society

Appellant

and

Michael Onyango Obiero

Respondent

(Being an appeal from the judgment of the Co-operative Tribunal delivered on 29th July, 2021 by Hon. B. Kimemia, Chairperson)

Ruling

1. The application dated August 19, 2021is supported by the affidavit of Maxwell Odhiambo sworn on even date and a supplementary affidavit of Grace Maruga sworn on February 1, 2022. The respondent filed a replying affidavit sworn by Dave Lung’aho Siganga on November 23, 2021. The application seeks the following orders:-i.Spentii.Thatthis honourablecourt be pleased to extend stay of execution given by the trial court on July 29, 2021until this application is heard and determined.iii.thatthis honourable court be pleased to stay of execution until this appeal is heard and determined.iv.Thatcosts be in the cause.

2. Parties agreed to file written submissions in determining the application. Submissions were filed for the applicant but none for the respondent. It was submitted for the applicant/ applicant that no prejudice will be suffered by the respondent if the orders are granted. An ex-parte judgment was entered against the appellant because its former officials sat on the pleadings. The appellants have an arguable defence. The respondent is still a member of the appellant.

3. According to the replying affidavit, judgment was entered by The Co-operative Tribunal on July 29, 2021after the appellant failed to enter appearance and file defence despite having been served. The dispute involves the recovery of money. The applicant is a scheme to delay the rightful payment of money to the respondent.

4. The applicant seeks to stay execution pending the hearing and determination of the appeal. The applicant contend that an ex-parte judgement was entered in favour of the respondent. The Tribunal declined to set aside the judgement. There was change of committee members of the appellant. The old officials were surcharged by The Tribunal and did not disclose to the new members about the existence of the respondent’s claim.

5. The judgment of the Tribunal indicate that a request for judgment was made on October 12, 2019 and judgment was entered on October 17, 2019. The matter was to proceed for formal proof for some of the prayers. On February 9, 2021 the appellant filed a notice of appointment of Advocate. The matter proceeded for formal proof on that date. The plaintiff’s claim was for a refund of Kshs.604,000/=, interests, dividends and damages of Kshs.25,000/=.

6. The appellant’s draft defence is that the respondent has not withdrawn his membership and is still its member. Membership is governed by its By-laws. Further, that the respondent’s claim cannot exceed Kshs.400,200/=. Some of the plaintiff’s claims are denied.

7. The Tribunal delivered its judgment on 29th July, 202. The current application was filed on August 24, 2021 which is less than one month after the delivery of the judgment. I do find that the application was filed without unreasonable delay.

8. In the case of Butt v Rent Restriction Tribunal (1982) I KLR 417, the court held:-“1. The power of the court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.

2. The general principle in granting or refusing a stay is; if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should that appeal court reverse the judge’s discretion.

3. A judge should not refuse a stay if there are good grounds for granting it merely because in his opinion, a better remedy may become available to the applicant at the end of the proceedings.

4. The court in exercising its discretion whether to grant [or] refuse an application for stay will consider the special circumstances of the case and unique requirements. The special circumstances in this case were that there was a large amount of rent in dispute and the appellant had an undoubted right of appeal.

5. The court in exercising its powers under Order XLI rule 4(2)(b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security for costs as ordered will cause the order for stay of execution to lapse.”

9. The applicant’s contention is to the effect that it was condemned unheard. It would like to pursue its appeal against the judgment of the trial court. There has been no issue raised as to whether the respondent is not able to refund the decretal sum. The respondent has equally not stated that he is in a position to refund the decretal sum should the appeal succeed. I do find that justice will be served if the appellant is allowed to pursue the appeal to its logical conclusion. Allowing execution to proceed will have the effect of rendering the appeal nugatory. However, there is need to consider the interest of the respondent by having the decretal sum deposited either in court or in a joint account of both counsels.

10. In the end, the application dated August 19, 2021is merited and is hereby granted in the following terms:-i.Execution of the judgment of The Co-operative Tribunal entered on July 29, 2021 is hereby stayed pending the hearing and determination of the appeal.ii.The appellant to deposit a sum of Kshs.600,000/= in a joint interest earning account of both Advocates or in court within forty five (45) days hereof.iii.In default of making the deposits as per order two (ii) above, execution will issue.iv.Costs of the application shall follow the outcome of the Appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 9TH DAY OF DECEMBER, 2022J. K. SERGONJUDGEIn the presence of:………………………………. for the Appellant………………………………. for the Respondent