[2022] KECA 1392 (KLR)

Kitonga & 2 others v Hashtag Biz Hub Co. Ltd (Civil Appeal (Application) 327 of 2021) [2022] KECA 1392 (KLR) (16 December 2022) (Ruling)

Neutral citation: [2022] KECA 1392 (KLR)

Republic of Kenya

In the Court of Appeal at Nairobi

Civil Appeal (Application) 327 of 2021

A Ali-Aroni, JM Mativo & PM Gachoka, JJA

December 16, 2022

Between

Titus Mulandi Kitonga

1st Applicant

Nasimu Mulandi Kitonga

2nd Applicant

Shem Onyango

3rd Applicant

and

Hashtag Biz Hub Co. Ltd

Respondent

(Being an application for stay of execution pending hearing and determination of an intended appeal against the ruling and orders of the Environment and Land Court at Nairobi (E. O. Obaga, J.) delivered on 6th May 2021 in Environment and Land Court Case No. 67 of 2019 Environment & Land Case 67 of 2019 )

Ruling

1. The applicant has approached this court by way of a notice of motion dated June 9, 2021 expressed to be brought under rule 5(2) (b) of the Court of Appeal Rules for orders that:(i).........ii.THAT there be stay of the orders made by the learned High Court Judge on May 6, 2021 in ELC Ca No 67 of 2019 and those of the Chief Magistrate Court in CMCC No 4665 of 2019 on September 11, 2019 pending the hearing and determination of this application interpartes.ii.THAT there be stay of the orders made by the learned High Court Judge on May 6, 2021 in ELC Ca No 67 of 2019 and those of the Chief Magistrate Court in CMCC No 4665 of 2019 on September 11, 2019 pending the hearing and determination of the intended appeal.iii.THAT the status quo prevailing on the ground before issuance of the order of September 11, 2019 in CMCC No 4665 of 2019 to continue prevailing.”

2. By way of background, the respondent filed a suit in the magistrate’s court against the applicant, seeking orders of injunction and specific performance of a sale agreement in respect of a property LR No Nairobi/Block Tassia-11-97 /0794/088. Together with the suit, the respondent filed an application for injunction orders against the applicant.

3. Upon hearing the parties, the trial magistrate in a ruling dated 11th September 2019, granted an order for injunction and directed that OCPD Embakasi police station ensures compliance with the orders of the court. Aggrieved by the decision of the trial magistrate, the applicant filed an appeal in the High Court and also filed an application for stay of the execution pending the hearing and determination of the appeal.

4. Upon hearing the application, the learned judge dismissed the application and held as follows:“7. The parties were directed to file their submissions. I have considered the submissions which the parties filed. I must state at the outset that both parties addressed issues which if I were to address will embarrass the trial court. The appeal which has been filed arises out of an interlocutory application. The main suit is still pending in court. The only issue for me to decide is whether the applicants have demonstrated that they have an arguable appeal and an arguable appeal is not one which will necessarily succeed.”

8. The applicants do not deny that they entered into a sale agreement with the respondent. There is also no serious denial that the respondent was granted possession and that at some stage, the 3rd applicant had approached the respondent with a request to lease out the suit premises to him. For reasons I have stated hereinabove, I do not wish to make final findings on matters which will embarrass the trial court. However, considering the circumstances surrounding this matter, I have not been persuaded that the applicants have an arguable appeal to warrant grant of stay orders. It is clear that the respondent had been granted possession. When the 3rd applicant failed to secure a lease from the respondent, he went back to the applicant who granted him one. The status quo which should prevail is the status before the 3rd applicant entered the suit premises. I therefore find no merit in the applicant’s application which is hereby dismissed with costs to the respondent.”

5. We have carefully considered the application, the rival affidavits, the supporting documents, and the written submissions of the parties.

6. It is trite law that to succeed in an application under rule 5 (2) (b) of the Court of Appeal Rules, an applicant has to satisfy the twin principles that are enumerated in many decisions of this court namely:i.An applicant must demonstrate that they have an arguable appeal; andii.That the intended appeal (or appeal if already filed) will be rendered nugatory if the execution of the decree, order of proceedings is not stayed.

7. On the first limb of the twin principles, this court held in David Morton Silversein v Atsango Chesoni [2002] eKLR that for an order of stay to issue, the applicant must first demonstrate that the appeal or intended appeal is arguable; that is, it is not frivolous, and that the appeal or intended appeal would in the absence of stay be rendered nugatory.

8. Regarding the sufficiency of the pleaded grounds of appeal to warrant a grant of the stay of the orders sought, this court in Yellow Horse Inns Ltd v A.A Kawir Transporters and 4 others [2014] eKLR, observed that an applicant need not show a multiplicity of arguable points, as one arguable point would suffice. Neither is the applicant required to show that the arguable point would succeed, as this court held in Kenya Commercial Bank Limited v Nicholas Ombija [2009] eKLR.

9. On the arguability of the appeal, the applicants have raised a number of grounds in the memorandum of appeal stating that; on jurisdiction the trial court failed to address whether it had jurisdiction in view of section 3(3) of the law of Contract Act; no prima facie evidence had been adduced to warrant grant of injunction, the respondent did not have possession of the property and had not complied with the conditions to warrant possession; and the court in its ruling varied the terms of the contract between the parties.

10. Upon considering the grounds of appeal, we note that this Court has held in the case ofKenya Commercial Bank v Nicholas Ombija [2009] eKLR, (supra) that an “arguable” appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court. The grounds raised by the applicant are arguable, but whether they will succeed or not, will be dealt with by the bench that will hear the appeal. Therefore, the applicant has satisfied the first limb of the twin principles but is subject to succeeding on the second limb on whether the appeal will be rendered nugatory if the order for stay of execution is not granted.

11. On the second limb of these principles, as to whether the appeal would be rendered nugatory if the stay is not granted, this Court in Reliable Bank Ltd v Norlake Investments [2002] 1 EA defined the word “nugatory” in the following words: “it does not mean only worthless, futile, or invalid, it also means trifling.” The court also expressed the view that what may render the success of the appeal nugatory must be considered within the circumstances of each case.

12. We note that this dispute revolves around the interpretation of the agreement dated November 15, 2015. It is worth noting, that the terms of that agreement are clearly stated and the purchase price is known. It is not also disputed by the applicant, that it has already received a sum of kshs 5,500,000. 00 from the respondent. In view of this, in the event that the applicant is successful, any damages that it may suffer as a result of the alleged breach can be compensated by way of damages. Accordingly, the applicants have not satisfied the second limb for grant of stay under rule 5 (2) (b) of the Court of Appeal rules.

13. Finally, it is noteworthy that the application is seeking a stay of a negative order. The order of the High Court was for the dismissal of the application for a stay of the magistrate’s court. In their prayer, they have prayed for a stay of execution of the orders of the magistrate’s court. The application that is before us, is the one emanating from the ruling of the learned judge and it is the one the applicant is appealing against. In the case ofThika School of Medical and Health Sciences Limited (Under Administration) & another v Rao & 2 others (Civil Application E004 of 2022) [2022] KECA 382 (KLR) (Civ) (4 March 2022) (ruling) this court at paragraph 24, has pronounced itself on the question of an application seeking stay of negative orders:“…there is no jurisdiction to grant relief under rule 5(2) (b) of this court’s rules where the High Court’s order either resulted in a dismissal or a striking out orders or, alternatively, where the court did not order either party to do or refrain from doing something capable of being restrained… that where the court is not being asked to issue an order of status quo, there is no jurisdiction to grant relief under the said Rules…”

14. The upshot of the foregoing is that this application has failed to satisfy the twin principles for grant of stay under rule 5 (2) (b) of the Court of Appeal rules. Accordingly, the application is dismissed with costs to the respondent.

DATED AND DELIVERED AT NAIROBI THIS 16TH DAY OF DECEMBER, 2022. ALI-ARONI..............................JUDGE OF APPEALJ. MATIVO..............................JUDGE OF APPEALM. GACHOKA, CIArb, FCIArb..............................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR