[2021] KEHC 6525 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MACHAKOS

MISC. CIVIL APPLICATION NO. 66 OF 2018

(Coram: Odunga, J)

CIVIL APPEAL NO. 12 OF 2021

KIOKO PETER…….……………………………. APPELLANT/APPLICANT

-VERSUS-

KISAKWA NDOLO KING’OKU……………………………. RESPONDENT

RULING

1. By a Motion on Notice dated 10th February, 2021, the applicant herein seeks an order that pending the hearing and determination of this appeal, there be a stay of warrants of arrest issued on 10th December, 2016 and further execution in Machakos CMCC No. 59 of 2016.

2. According to the applicant, judgement was delivered against him in the said case without him having testified in his defence. Though he applied for the same to be set aside, the same was disallowed as a result of which he lodged an appeal in Machakos HCCA No. 31 of 2019. During the pendency of the said appeal, the Respondent sought to execute the said judgement and he filed a declaratory suit being Machakos HCCC No. 1 of 2020 and sought a stay thereof but the said application was disallowed on the ground that there was no danger of execution against him.

3. According to the applicant, the circumstances have since changed by the issuance of the notice to show cause and warrants of arrest against him on 10th December, 2020. Though the applicant sought a stay of the same, the application was dismissed on 4th February, 2021 and warrants of arrest extended.

4. It is contended that unless the stay sought is granted, the applicant risks being committed to jail before his declaratory suit is heard and determined. It was contended that the applicant’s appeal is arguable with chances of success.

5. Although this court directed the parties to prosecute their application by filing written submissions, the applicant did not file his submissions.

6. The application was opposed by the Respondent. According to the Respondent, he filed CMCC No. 59 of 2016 for compensation after a fatal accident and on 5th February, 2019 judgement was entered in his favour against the appellant. Against that judgement, the appellant filed HCCA No. 31 of 2019 together with an application for stay of the said judgement. On 10th June, 2019, this court granted a conditional stay which the appellant declined to comply with. Instead, the appellant went back to the trial court and filed another notice of motion dated 5th March, 2020 seeking for stay of the judgement of 5th February, 2019 and review which application was dismissed with costs. The appellant the proceeded to this court and filed a declaratory suit being HCCC No. E001 of 2020 and on 18th January, this court dismissed the application for stay. The appellant went back to the trial court and filed another notice of motion dated 29th December, 2020 seeking for stay of the judgement entered on 5th February, 2019 and stay of warrants of arrest and on 4th February, 2021 the said application was dismissed with costs hence the present appeal and application for stay.

7. It is therefore submitted that this court has dealt with stay of execution in its ruling in Civil Appeal No. 31 of 2019 and gave a conditional stay that was not complied with. It also dealt with issue of stay in civil suit no. E001 of 2020 and dismissed the application for stay on 18th January, 2021. This is now a third application for stay of the same judgement dated 5th February, 2019 which previously this court has declined stay. While declining to comply with the conditions imposed by this court, it was submitted that the applicant is going behind the back of the court cunningly to obtain stay.

8. The Court was urged to find that the applicant having failed to meet the conditions imposed does not warrant stay. The applicant was given an opportunity to show cause why warrant of arrest should not be issued and he opted not to attend court to show cause. It was submitted that the applicant is a party that does not obey court orders hence the court should not exercise its discretion in his favour.

9. In the Respondent’s view, litigation in a case should come to an end in a way or another. In this case, the appellant applicant has filed two appeals and a declaratory suit in the same judgment. He has Civil Appeal No.31 of 2019 that has never been prosecuted todate and whereby he was given conditional stay. He has also filed declaratory suit no. E001 of 2020 which is pending in court and whereby an application for stay was dismissed by this court on 18th January, 2021. The applicant has filed two other applications for stay in the trial court that were dismissed. The court was urged to find the applicant being vexatious and being mean with truth and honest and his conduct amounts to an abuse of the court process as it did in the ruling dated 18th January, 2021.

10. It was submitted that there is no appeal with chances of success since the present appeal is on refusal to stay warrant of arrest. The court was urged to find that the present application has no merits and dismiss it with costs.

Determination

11. I have considered the application, the affidavits in support of and in opposition to the application as well as the submissions filed.

12. In my ruling delivered in HCCA No. 31 of 2019, between Kioko PeterandKisakwa Ndolo Kingóku,this court granted a stay of execution of the judgement delivered on 5th February, 2019 in Machakos CMCC No. 59 of 2018 pending that appeal on condition that the Applicant remits to the Respondent half of the decretal sum and deposit the other half in a joint interest earning account in Kenya Commercial Bank, Machakos, in the names of the advocates for the parties herein within 30 days from the date hereof. In default, the application was to be deemed to have been dismissed with costs. It is not in contest that the said condition was not complied with and consequently the application was deemed to have been dismissed with costs.

13. In my ruling delivered on 18th day of January, 2021 in HCCC No. Civil Suit No. E001 of 2020 between the applicant herein,Peter Kilonzo Kioko and Monarch Insurance Co. Ltd and in which the interested party herein, Kisakwa Ndolo King`Oku,was joined as an interested party, I expressed myself inter alia as follows:

“In my view, to grant the orders sought in those circumstances would amount to a grave abuse of the process of the Court…This Court cannot however close its eyes to the fact that by granting the present application, the applicant will in effect obtain a stay of execution of the judgement in CMCC no. 59/2016 so that he would have achieved through the backdoor what he failed to achieve through his failure to comply with the conditions imposed on him in order to enjoy stay of execution.”

14. The appeal the subject of this matter has its roots in the judgement which was the subject of the said earlier proceedings. A grant of stay in the manner sought herein will obviously have the effect of staying the execution of the judgement. That decision would obviously turn this court into a theatre of the absurd as this Court would have granted an unconditional stay when it had earlier on granted a conditional stay which was never complied with.

15. The history of this litigation reveal a party who is intent at vexing the other party by setting up several litigation frons. The applicant must be told that courts do not exist as avenues for vexation by litigants but for purposes of granting relies to genuinely aggrieved parties. The wise words of the Court of Appeal in J M Mwakiovs. Kenya Commercial Bank Ltd. Civil Appeal No. 156of1997 ought to act as a guide to the applicant herein. In that case the said Court expressed itself as follows:

“The appellant is a familiar figure in the Law Courts. He does not hesitate to institute litigation on any aspect of perceived breach of his rights. Whereas litigants are perfectly free to bring any number of suits they may so desire, they must understand that in doing so, they are bound to stick to the rules governing the conduct of litigation in courts… no consequence that flows out of the enforcement of law can be said to cause injustice. Moreover, it is a cardinal principle in the administration of justice that it is in the interest of all persons that there should be an end to litigation… The appellant must be told in no uncertain terms that no matter how many applications and suits he may institute in the courts seeking to recover the suit property, such attempts by him would be futile and a waste of resources since the dispute relating to the suit property has been heard and finally determined by competent courts. This appeal is indeed vexatious and amounts to an abuse of the process of the court and it is dismissed with costs.…”

16. In Mitchell and Others vs. Director of Public Prosecutions and Another (1987) LRC (const) 128,it was held that:

“….in civilized society legal process is the machinery used in the courts of law to vindicate a man’s rights or to enforce his duties. It can be used properly, it can be used improperly, and so abused. An instance of this is where it is diverted from its proper purpose, and is used with some ulterior motive, for some collateral one or to gain some collateral advantage, which the law does not recognize as legitimate use of that process. But the circumstance in which abuse of process can arise are varied and incapable of exhaustive listing. Sometimes it can be shown by the very steps taken and sometimes extrinsic evidence only. But if and when it is shown it happened, it would be wrong to allow the misuse of that process to continue. Rules of court may and usually do provide for its frustration in some instance. Others attract the res judicata rule. But apart from and independent of these there is the inherent jurisdiction of every court of justice to prevent an abuse of its process and its duty to intervene and stop proceedings, or put an end to it. This inherent power has been used time and again to put a summary end to a process which seeks to raise and have determined an issue which has been decided against the party issuing it in earlier proceedings between the parties.”

17. In the premises this application is an abuse of the court process. It is hereby dismissed with costs to the Respondent.

18. It is so ordered.

Read, signed and delivered virtually at Machakos this 2nd day of June, 2021.

G V ODUNGA

JUDGE

Delivered in the presence of:

Ms Koinet for Mr Ojienda for the Applicant

CA Geoffrey