[2014] KEHC 1869 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL SUIT NO. 5 OF 2010

KILINDINI WAREHOUSES (K) LTD ..............................................1ST PLAINTIFF

AWADH SALEH SAID.................................................................... 2ND PLAINTIFF

-VERSUS-

OMAR SALEH SAID.................................................................... 1ST DEFENDANT

BARIKA MOHAMED SHERMAN................................................2ND DEFENDANT

RULING

2nd Defendant filed a Notice of Motion dated 3rd April 2012 (dismissed Notice of Motion) which was heard and a Ruling delivered on 11th July 2012. By that Ruling the Notice of Motion was dismissed. It is important to consider the prayers in that Notice of Motion. They were-

THAT an injunction be issued to restrain the 1st and 2nd Plaintiff either by themselves or through their servants, agents and or employees from amending, altering, changing, replacing, adding, removing or in any way tampering or re-constituting the Board of Directors and or shareholders and further from in any way tampering with or changing or altering the records of all filings at the Companies Registry and or any of the Companies records wheresoever they may be and or changing or altering the records of any or all past and present shareholders and directors and or further disposing-off, selling, wasting, alienating, dividing, sub-dividing, leasing, mortgaging, charging, transferring, and or selling of in any manner whatsoever disposing off the land and properties and assets of the 1st Plaintiff Company and or winding up, placing under receivership, declaring bankruptcy and or in any other manner whatsoever and howsoever from dealing with the assets, monies, shares, land, buildings, and other properties of and in particular lands and companies in which the aforesaid 1st Plaintiff Company KILINDINI WAREHOUSES (K) LIMITED is stated to have an interest in;

THAT the 2nd Defendant/Applicant be temporarily appointed to sit on the Board of Directors of the 1st Plaintiff Company for the purpose of safeguarding the subject matter of this suit and the land, assets and operations of the Company pending the hearing and determination of this suit.

2nd Defendant on 12th July 2012 filed a Notice of Appeal against the Ruling of 11th July 2012. The Court by this Ruling is considering the Notice of Motion dated 23rd July 2012 seeking to stay the Ruling of 11th July 2012 pending appeal. It is also important to bear in mind the prayers in that Notice of Motion-

THAT this application herein be certified as urgent and be heard ex-parte in the first instance.

THAT there be a stay of the decision of this Honourable Court and an Order of stay of its Ruling dated 11th July 2012 and any consequential orders that may be issued pending the hearing and determination of this application.

THAT there be a stay of the decision of this Honourable Court and an Order of stay of its Ruling dated 11th July 2012 and any consequential orders that may be issued pending the hearing and determination of the intended Appeal from the aforesaid Ruling of this Court.

THAT the Honourable Court may be pleased to grant an Order of stay of these proceedings pending the hearing and determination of the intended Appeal.

THAT in view of the urgency of the matter the Honourable Court do in the first instance dispense with the service of this application on the Respondents and make an interim order in terms of the prayers above.

THAT the costs of this application be provided for.

A close observation of the prayers in the dismissed Notice of Motion will show that what the 2nd Defendant sought was injunctive order and an order for 2nd Defendant to be temporary appointed to sit on the Board of Directors of the 1st Plaintiff. It therefore follows that the dismissal of that Notice of Motion did not lead to any order being granted which was capable of being executed or which can be the subject of an application of stay pending appeal. The Learned Judge on 11th July 2012 in dismissing 2nd Defendant’s dismissed Notice of Motion simply stated-

“In sum, the application dated 3rd April 2012 is dismissed with costs.”

It therefore follows that the prayer seeking to stay of decision of 11th July 2012 is an oxymoron because stay of a dismissal of an application cannot be granted where such dismissal did not lead to an order capable of being executed. There is a wealth of decision of both Court of Appeal and High Court which make it clear that there cannot be an Order staying a negative Order, such as the one of 11th July 2012.

In the case WESTERN COLLEGE OF ARTS AND APPLIED SCIENCE –Vs- ORANGA & OTHERS [1976-80] KLR the Court of Appeal stated-

“But what is there to be executed under the judgment, the subject of the intended appeal? The High Court has merely dismissed the suit, with costs. Any execution can only be in respect of costs. In Wilson v Church the High Court had ordered the trustees of a fund to make a payment out of that fund. In the instant case, the High Court has not ordered any of the parties to do anything, or to refrain from doing anything, or to pay any sum. There is nothing arising out of the High Court judgment for this Court, in an application for a stay, it is so ordered.”

The Court of Appeal also was of the same sentiments in the case EXCLUSIVE ESTATES –Vs- KENYA POSTS & TELECOM CORP & ANOTHER [2005]1 EA viz-

“The Order which dismissed the suit was a negative order which is not capable of execution. If the order sought is not granted, the appeal will not be rendered nugatory because if the appeal succeeds the dismissal order will be set aside and the suit will be restored on the register. The applicant has not sought an order for stay of execution of the decree on costs of the dismissed suit. It appears that there is no likelihood of the first Respondent seeking to recover costs of the dismissed suit from the applicant because one of the grounds for applying for the security of costs in the Superior Court was that the applicant is a dormant company without any assets.”

Looking at Order 42 Rule 6 of the Civil Procedure Rules the Court is empowered to Order stay of execution pending appeal. Execution is defined in the Black’s Law Dictionary, 8th Edition as-

“The act of carrying out or putting into effect (as a Court Order) …. Judicial enforcement of a money judgment.”

2nd Defendant brought her application under Order 42 Rule 6. Bearing in mind the above definition of execution it becomes clear that there was nothing in the Ruling of 11th July 2012 which is capable of being executed and which can be stayed, other than the order for costs, but which shall only become payable on taxation at the conclusion of this suit.

The second prayer sought by the 2nd Defendant was for the Court to order stay of this suit pending appeal. Other than giving the background and the present conflict of the parties in relation to the running of the 1st Plaintiff’s Company, 2nd Defendant did not address herself, in her submission, on why stay of this suit should be ordered. 2nd Defendant has made allegations of wrong doing by 2nd Plaintiff in regard to the running of the 1st Plaintiff’s company. Those allegations are contained in the 2nd Defendant’s Counter Claim. By the dismissed Notice of Motion 2nd Defendant had sought to injunct 2nd Plaintiff from carrying on those alleged wrong doing. In my view parties should without any more wastage of time proceed to fix this case to full hearing so that this Court can determine fully the rights of the parties in regard to the 1st Plaintiff’s Company. Staying this suit would not serve any good to the ongoing conflict, particularly since the parties are family members.

In conclusion I grant the following orders-

The Notice of Motion dated 23rd July 2012 is dismissed with costs.

Parties are hereby ordered to file-

All their witnesses statement.

Paginated documented arranged in the order in which they shall be exhibited in Court.

Agreed and if not agreed individual issues.

Parties should proceed to take a date for pre-trial directions once the documents as ordered in (b) above are filed.

DATED and DELIVERED at MOMBASA this 6TH day of NOVEMBER, 2014.

MARY KASANGO

JUDGE