[2022] KEHC 10672 (KLR)

Kwacha Communications Limited & another v Pindoria Holdings Limited & another (Civil Appeal E033 of 2022) [2022] KEHC 10672 (KLR) (Civ) (17 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10672 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E033 of 2022

DO Chepkwony, J

June 17, 2022

Between

Kwacha Communications Limited

1st Appellant

Hampshire Limited

2nd Appellant

and

Pindoria Holdings Limited

1st Respondent

Kwacha Group of Companies

2nd Respondent

Ruling

1. There are two applications pending in this matter and are subject of this ruling. One is dated January 31, 2022and the other, February 7, 2022respectively. Both filed by the appellant/applicants herein and I shall address the two applications in contemporaneity.

2. The application dated January 31, 2022seeks for orders of stay of execution of the Ruling delivered on January 26, 2022 by Hon.H.M Nyaberi in Milimani C.M.C.C No. 8248 of 2016 pending the hearing and determination of the Appeal.

3. That application is premised on among other grounds, which are also buttressed in the affidavit sworn in support of the application by Appellant’s Advocate, Nicholas Reuben Nyamai on the date of the application, that on October 12, 2021, the 1st Respondent initiated illegal and unprocedural process of execution thereby attaching/ proclaiming the Appellants/applicants goods. That the appellants took up objection proceedings against the 1st Respondent vide an application dated October 15, 2021, but the said application was dismissed by the trial court vide a Ruling delivered on January 26, 2022. That the Applicants are aggrieved by the said ruling and the same forms the substance of the appeal for which if stay of execution of the Ruling is not granted, the 1st Respondent may (sic) cart away the Appellants goods and actuate an illegal execution which may defeat the substratum of the appeal.

4. On the other hand, the second application dated February 7, 2022, seeks for an order of permanent injunction restraining the 1st Respondent and or its agents and or its servants and or Chador Auctioneers from proclaiming and or carrying away any of the appellants/objectors’ goods it illegally proclaimed on October 12, 2021

5. The second application is as well premised on grounds on its face and in the supporting affidavit sworn on even date by the appellants’ advocate on record, Nicholas Reuben Nyamai. The case advanced here is that when the 1st application seeking stay of execution was first presented before the court on January 31, 2022, Hon. Justice Sergon granted interim orders for stay of execution pending the determination of the application. However, in total disregard of the interim orders in place, the 1st respondent’s counsel on record through a Letter dated February 3, 2022, advised its auctioneers to defy the orders granted and in the Appellants’ view, an injunction ought to issue to prevent such harassing actions and or contempt of court.

6. The 1st respondent opposed the two applications by filing grounds of opposition with respect to the notice of motion application dated January 31, 2022 and an affidavit sworn by its advocate on record, Stephen Kipkorir Bundotich on March 18, 2022 in response to the two applications.

7. A summary of the grounds of opposition is that the application at hand does not seek stay of execution on the decree in this case or the proclamation thereof but seeks stay on the order which dismissed the appellant’s objection and that being a negative order it cannot be stayed. Further that the affidavit in support of the application was sworn by an advocate who was not versed with the facts of the case and as such the application is frivolous.

8. In the replying affidavit, it is expounded that the advocate on record for the objectors is the same advocate acting for the Judgment debtor. Further, that the Judgment debtor had filed an appeal and application seeking stay of execution which was allowed on condition that the decree debtor/2nd respondent deposits the decretal sum in a joint account. The directions were not obliged with yet the same advocate representing the judgment debtor filed the present objection proceedings which were declined. In the 1st respondent’s view, the present application is an abuse of the court’s process and ought to be dismissed.

9. The two applications were argued by way of written submissions and as reflected in the court records, the applicant’s submissions are dated May 6, 2022, whilst those of the 1st respondent are dated April 25, 2022. Those submissions replicate the summary above and I wish not to duplicate the same here.

Analysis and determination 10. Having considered the two applications by the appellant, and the response thereof as well as the submissions of both parties, I find that there are two issues for determination namely;a.Whether the appellants have met the threshold for grant of orders for stay of execution; andb.Whether theappellants have established a case for grant of injunction orders as sought in the application dated 7the February, 2022.

11. As regards the first issue on stay of execution pending appeal, the relevant provision is order 42 rule 6 of the Civil Procedure Ruleswhich provides that an Applicant in an application for stay must show that he/she may suffer substantial loss, that the application is made without unreasonable delay and the willingness to provide such security as the Court may impose.

12. Applying the above principles to the facts of this case I do note that the orders for stay are sought with respect to a Ruling delivered on January 26, 2022dismissing the Appellant’s application dated October 15, 2021. That application sought for orders to lift the attachment on goods proclaimed by the 1st Respondent on the ground that those goods belonged to the Appellants but not the Judgment debtor. In my view, that Ruling was a negative order, hence incapable of being stayed as the appellants/applicants are now seeking. Better still, this court cannot grant stay of execution on an order dismissing an application by the Applicant because there is nothing to be executed in that Ruling or orders for dismissal of an application. Such Ruling did not direct any of the parties to do or to refrain from doing anything or to pay any sum that can be stayed by this court.

13. Similar findings have been made by this court including in the case of Catherine Njeri Maranga –vs- Serah Chege &another [2017] eKLR, where the court expressed thus;“…The Applicant seeks to appeal against the order dismissing his application. This is not an order capable of being stayed because there is nothing that the Applicant has lost. The refusal simply means that the Applicant stays in the situation he was before coming to court and therefore the issues of substantial loss that he is likely to suffer and the appeal being rendered nugatory does not arise”

14. Similarly, in the case of Kaushik Panchamatia & 3 others v Prime Bank Limited & another [2020] eKLR, the Court of Appeal observed that,“…that a negative order is incapable of being stayed because there is nothing to stay. It therefore, follows that in light of the above threshold we have no mandate to grant a stay order in the manner prayed for by applicants.”

15. It then follows that there is nothing capable of execution in the ruling delivered on January 26, 2022save for costs since the court merely dismissed the appellant’s application.

16. In light of the foregoing, it is this court’s view that the order for stay of execution cannot be granted in the manner sought it the application dated January 31, 2022and the prayer is declined.

17. The second issue for determination is whether an order for permanent injunction can issue to retrain the orders respondents and/or their agents from proclaiming the appellant/objector’s goods proclaimed on October 12, 2021. Since prayer No.(3) in the application dated February 7, 2022seeks for permanent injunction which is different from temporary/interim injunction which the appellant seems to have submitted on this court will consider the submissions in light of a prayer for permanent injunction as sought in the prayers on face of the application. It has to be noted that a permanent injunction is different from a temporary/interim injunction since a temporary injunction is only meant to be in force for a specified time or until the issuance of further orders from the court while a permanent injunction has a perpetual character and is granted upon hearing the parties.

18. In the case of Shepherd Homes Limited v Sandahm Homes Limited v Sandahm [1971] 1 CH 34, Megarry, J stated:“it is plain that in most circumstances a mandatory injunction is likely, other things being equal, to be more drastic in its effects than a prohibitory injunction. At the trial of the action, the Court will, of course grant such injunctions as the justice of the case requires; but at the interlocutory stage, when the final result of the case cannot be known and thecourt has to do the best it can, I think the case has to be unusually strong and clear before a mandatory injunction will be granted, even if it is sought in order to enforce a contractual obligation.

19. The above excerpt confirms that, while this court has power to grant permanent/mandatory injunction on interlocutory application, such permanent/mandatory injunctions have to be issued only in rare cases where there are compelling circumstances and where the injury complained of is immediate, pressing and is likely to cause extreme hardship.

20. In the present case, the appellant submitted that the court had granted temporary orders for stay which the Respondents had colluded to defy hence the need to permanently restrain them from proceeding in contempt. The appellant added that it owns the goods proclaimed and the trial court erred in not finding as such. Therefor, if execution ensues, there is a possibility the goods shall be disposed off to the detriment of theappellants.

21. As I have pointed out, courts do grant mandatory applications in very rare of circumstances where the justice of the case require that a mandatory injunction be granted. The gist is to avoid sacrificing the right of the parties to a fair and proper hearing of their dispute, which entails calling and cross-examination of witnesses by a summary hearing.

22. In this case, it is my view that theappellant has not shown the clearest of cases and why a permanent injunction should be issued. What the appellant is asking the court to do by seeking for the permanent injunction is that the court determines the rights to the proclaimed properties in finality at this interlocutory stage. I have not seen evidence or grounds adduced to demonstrate the clearest of cases to warrant the grant of permanent injunction sought and this prayer is as well turned down.

23. In the end, this court finds the two applications dated January 31, 2022and February 7, 2022unmerited and proceed to dismiss the same with costs to the 1st respondent.It is so ordered.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 17TH DAY OF JUNE 2022. D. O. CHEPKWONYJUDGEIn the presence of:M/S Ngetich counsel h/b for Mr. Nyamai for AppellantM/S Obin counsel h/b for Mr. Bundotich counsel for 1st RespondentCourt Assistant - Kevin