[2017] KEELC 1145 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MOMBASA

ELCA NO 1 OF 2017

LOICE KHACHENDI ONYANGO……………………………………..….APPELLANT

VERSUS

ALEX INYANGU…………………………….………………………1ST RESPONDENT

CHRISTABEL OLANDOKUSA……….…………………………...2NDRESPONDENT

RULING

1. By a Notice of Motion Application dated 22nd February 2017 and brought under Order 42 Rule 6 and Order 51 Rule 2 of the Civil Procedure Rules, the Appellant is seeking for orders

1) THAT this Honourable Court be pleased to certify this Application urgent.

2) THAT this Honourable Court be pleased to dispense with the service of the Application in the first instance owing to the urgency of the matter.

3) THAT this Honourable Court be pleased to stay execution of the decree herein and the Order made on 7th February 2017, as against the Appellant pending hearing and determination of this Appeal.

4) THAT the costs of this Application be provided for.

2. The Application is based on the grounds on the face of the Notice of Motion and is supported by the affidavit of Loice Kachendi Onyango, the Appellant sworn on 22nd February 2016(sic). Briefly, the Appellant is challenging the attachment of TITLE NO.KILIFI/MTONDIA/318 by the 1st Respondent in execution of a decree in Mombasa CMCC NO.3443 of 2013 against the 2nd Respondent. The Appellant had field an objection to the said attachment on the ground that the land, though registered in the 2nd Respondent’s name is family property and the 2nd Respondent holds the same in trust of other family members. After hearing the objection proceedings, the learned Trial Magistrate (Hon. Nyakweba) in his ruling of 7th February 2017 dismissed the Appellant’s objection and ordered the judgment creditor to proceed with the execution of the decree. Being aggrieved by that ruling, the Appellant made an oral Application for stay of execution for 30 days to enable her lodge an Appeal and the Court granted the stay for 30 days but on condition that the Appellant deposits the decretal sum in a joint interest earining account in the names of the Advocates for the parties. The Appellant then filed this Appeal and the present Application.

3. It is the Appellant’s contention that whereas the decree is against the 2nd Respondent, the execution is against the Appellant and other members of her family who are not parties to the suit. The Appellant avers that she will suffer substantial loss if the execution of both the decree and the order made on 7th February 2017 are executed. The Appellant further contends that the granting of a stay by the learned Magistrate on condition that the Appellant deposits the decretal amount arising from a suit to which she is not a party flies against the rule of law doctrine which bar deprivation of property without one being given an opportunity to be heard and stated that the ruling Appealed against contravenes the provisions of Article 50 of the constitution and the law. The Appellant further states that the consequence of the ruling is that unless she deposits the decretal amount as directed by the subordinate Court, the suit property will be sold and the purpose of this Appeal defeated. The Appellant avers that her Appeal has great chances of success.

4. The Application is opposed by the 1st Respondent who filed a Replying Affidavit sworn by Fred Adhoch on 13th March 2017 in which it is deponed inter alia, that the Application in its entirely is unmerited, bad in law, vexatious and an abuse of the Court process and is aimed at stifling the decree holders execution of the decree. That the Appellant after being accorded a hearing failed to prove that she has any proprietary interest in the attached property and that the execution was proper as the same is against the judgment debtor and not the appellant.

5. The Application was prosecuted by way of Written Submissions which were duly filed by the Appellant and the 1st Respondent in which they both reiterated the contents of their respective affidavits. Counsel also relied on various authorities.

6. I have considered the Application, the affidavits on record, the submissions filed and the authorities cited. The relief of stay of execution pending Appeal is governed by Order 42 Rule 6 of the Civil Procedure Rules which provides as follows:

6(1) No Appeal or second Appeal shall operate as a stay of execution or proceedings under a decree or order Appealed from except in so far as the Court Appealed from may order but, the Court Appealed from may for sufficient cause order stay of execution of such decree or order, and whether the Application for such stay shall have been granted or refused by the Court Appealed from, the Court to which such Appeal is preferred shall be at liberty, on Application being made, to consider such Application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the Court appealed from whose decision the Appeal is preferred may apply to the appellate Court to have such order set aside.

(2) No order for stay of execution shall be made under sub Rule (1) unless: -

a) the Court is satisfied that substantial loss may result to the Applicant unless the order is made and that the Application has been made without undue delay; and

b) such security as the Court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the Applicant.

The relief is discretionary but the discretion must be exercised judiciously and upon defined principles of law; not capriciously or whimsically. Therefore, stay of execution should only be granted where sufficient cause has been shown by the Applicant. In determining whether sufficient cause has been shown, the Court should be guided by the three pre-requisites provided under Order 42 Rule 6 of the Civil Procedure Rules. Firstly, the Application must be brought without undue delay; secondly, the court will satisfy itself that substantial loss may result to the Applicant unless stay of execution is granted; and thirdly such security as the Court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the Applicant.

7. From the record, the order Appealed against was made on 7th February 2017 and the appellant immediately made an Application for stay which was given for 30 days from the date of ruling. The Application herein was filed on 22nd February 2017. The Application was therefore made timeously.

8. Regarding the second pre-requisite in Order 42 Rule 6 of the Civil Procedure Rules, that is substantial loss occurring to the Applicant, I wish to refer to the case of Kenya Shell Limited –vs- Benjamin Karuga Kigibu & Ruth Wairimu Karuga (1982-1988)KAR 1018 where the Court of Appeal stated that:

“It is usually a good rule to see if Order 41 Rule 4 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the Applicant, it would be rendered nugatory by some other event. Substantial loss in its various forms is the cornerstone of both jurisdiction for granting stay.”

9. In the case of Machira T/A Machira & Co Advocates –vs- East African Standard (No.2) (2002)KLR 63, the Court stated that:

“In this kind of Application for stay, it is not enough for the Applicant to merely state that substantial loss will result. He must prove specific details and particulars……where no pecuniary or tangible loss is shown to the satisfaction of the Court, the Court will not grant a stay.”

From the foregoing, it is clear that it is incumbent upon the Applicant to show the substantial loss he is likely to suffer if no stay is ordered. Making a bare statement that substantial loss will be suffered is not sufficient. Also in the case of Absalom Dora –v-Turbo Transporters (2013)(eKLR), it was stated that:

“The discretionary relief of stay of execution pending Appeal is designed on the basis that no one would be worse off by virtue of an order of the Court; as such order does not introduce any disadvantage, but administers the justice that the case deserves. This is in recognition that both parties have rights; the Appellant to his Appeal which includes the prospects that the Appeal will not be rendered nugatory; and the decree holder to the decree which includes full benefits under the decree. The Court in balancing the two competing rights focuses on their reconciliation which is not a question of discrimination.”

10. In this particular case, how does the Court balance the rights of the parties, considering that there is no dispute or Appeal against the decretal amount due to the 1st Respondent? The Appellant has submitted that the granting of a stay on condition that the Appellant deposits the decretal amount arising from a suit to which she is not a party amounts to deprivation of property. I reckon that the Appellant is not alive to the fact that even where stay is granted it must be on terms in the form of security for the due performance of such decree. The learned Trial Magistrate in his ruling of 7th February 2017 was alive to this fact and granted stay on condition that the Appellant deposits the decretal amount in a joint interest earning bank account in the names of the Advocates for the parties. The Applicant failed to comply and has not offered any alternative security. Neither has she requested for extension of time to make the deposit. In the end, I am far from being satisfied that the Appellant has advanced a proper case to enable me grant the orders sought. The Application lacks merit and the same is hereby dismissed with costs to the 1st Respondent.

Ruling dated, signed and delivered at Mombasa this 7th day of November 2017

C. YANO

JUDGE