[2022] KEHC 9899 (KLR)

Mbau t/a Nairobi Kiru Line Services v Mawati Nissan Team (Civil Appeal E772 of 2021) [2022] KEHC 9899 (KLR) (Crim) (7 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9899 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Civil Appeal E772 of 2021

DO Chepkwony, J

July 7, 2022

Between

Denis Muruu mbau t/a Nairobi Kiru Line Services

Appellant

and

Mawati Nissan Team

Respondent

Ruling

1. Before this court is the Appellant’s Application dated 8th December, 2021 seeking for orders that;a.Spent;b.Spent;c.Pending the hearing and determination of the Applicant’s Appeal, this Honorable Court do grant a stay of execution of the subordinate court’s Ruling and orders delivered on 29th October, 2021 by the Honorable Magistrate A.N Ogonda in Milimani CMCC no. E9657 OF 2021.

2. The Application is premised on the grounds thereon and the depositions in the Supporting Affidavit of Dennis Muruu Mbau sworn on 8th December, 2021. According to the Applicant:-a.Being aggrieved by the Ruling and Orders of the trial court delivered on 29th October, 2021 in Milimani CMCC NO.9757 of 2021, he has since filed a Memorandum of Appeal.b.That the intended appeal is arguable with overwhelming chances of success.c.He had been operating a picking bay outside L.R. No.209/138/56 since 1995, but the Respondent filed a Plaint and an Application for injunction in Milimani CMCC No.9657 of 2021 - Mawat Nissan Team –vs- Denis Muruu Mbau which was granted, and the said orders have rendered the Applicant completely out of business.d.He is a public service operator with over 30 PSV vehicles with each employing at least 3 people directly but which people have since lost their jobs courtesy of the pendency of the said orders.e.The Appellant and the people deriving their livelihoods from his business will continue suffering irreparable loss.f.The intended appeal will be rendered nugatory of the orders sought herein are not granted and that the Respondent will suffer no prejudice.

3. The Application is opposed vide the Replying Affidavit of Anthony Wagura Ikiki sworn on 18th January, 2022. It is stated therein:-a.That the instant Application does not disclose any facts pursuant to which this Honorable Court can tilt its discretion in his favor.b.The Application is misconceived, unfounded in law, frivolous and a gross abuse of the court process.c.The Applicant has not been operating a picking bay on the subject property since 1995 as alleged since the said picking bays were allocated in 1996. d.The assertion made at Paragraphs 6, 7 and 8 of the Application are untrue since they are unsupported by any evidence of ownership like lock books or TLB route licenses.e.The Applicant first encroached on the space adjacent to the Respondent’s own picking bay on L.R No.209/138/56 and then directly to the Respondent’s own legally allocated picking bay causing confusion and serious financial loses.f.The trial court’s Ruling did not restrain the Applicant from carrying on business but from encroaching and interfering with the Respondent’s own picking bay.g.The Applicant’s license was withdrawn on 30th October, 2018 and the same has never been re-issued.h.If the orders sought are granted, they will not only prejudice the Respondent but also cause chaos and confusion, and possible security risk to the general public who use the services of the Respondent.i.The Respondent’s prayer that the Application herein be dismissed with costs.

4. The Applicant filed a Supplementary Affidavit sworn by Dennis Mbau Muruu on 22nd March, 2022 in opposition to the Respondent’s Replying Affidavit and stated that:-a.The Respondent has not understood the document he is relating to.b.The Respondent took him to court as a Public Service Vehicle Operator hence he needed not proof.c.The question of the Applicant’s license was never an issue at the trial court. He maintains that his Application is properly founded on law.

5. In response, the Respondent filed a Further Affidavit sworn by Anthony Wagura Ikiki on 17th May, 2022 and mainly reiterated the depositions in his Replying Affidavit.

6. I have considered the Application, the, Affidavits in support and against together with the rival submissions by the respective parties. I find the issue for determination being whether the Applicant has demonstrated sufficient ground(s) to warrant the grant of stay of execution of the subordinate court’s Ruling and order delivered on 29th October, 2021 in Milimani CMCC No.E9657 of 2021.

7. The well settled principles guiding the grant for stay of execution pending appeal are provided for under Order 42 Rule 6(2) of the Civil Procedure Rules which provides as follows:“No order for stay of execution shall be made under subrule (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 unreasonable delay; andb.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.

8. From the foregoing, it is safe to say that for an order for stay of execution to issue, an Applicant must satisfy the court that;a.Substantial loss may result unless the order is made;b.The application has been made without unreasonable delay;c.Security for costs as the court orders has been given.

9. The court, in the case of RWW –vs- EKW [2019] eKLR, addressed its mind to the purpose of a stay of execution order pending appeal, in the following words:-“The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.Indeed to grant or refuse an application for stay of execution pending appeal is discretionary. The Court when granting the stay however, must balance the interests of the Appellant with those of the Respondent.”

10. The impugned Ruling and orders in the instant case were delivered on 29th October, 2021 and this application filed on 8th December, 2021. Clearly, the application has been brought without undue delay.

11. As regards the principle on substantial loss, as to what substantial loss is, it was observed in the case of James Wangalwa & Another –vs- Agnes Naliaka Cheseto [2012]eKLR, that:“No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say,the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal ... the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”

12. It is not enough for an applicant to state that the Respondent is a man of straw. It must be substantiated as a matter of fact. In the case of Ndeti Muli & 2 Others –vs- Hogla Mkando Omari & Another (Both suing as representatives of the Estate of Francis Mwatembo Mulonza) [2019] eKLR, the learned Judge observed that;-“The law, however appreciates that it may not be possible for the applicant to know the respondent’s financial means. The law is therefore that all an applicant can reasonably be expected to do, is to swear, upon reasonable grounds, that the Respondent will not be in a position to refund the decretal sum if it is paid over to him and the pending appeal was to succeed but is not expected to go into the bank accounts, if any, operated by the Respondent to see if there is any money there. The property a man has is a matter so peculiarly within his knowledge that an applicant may not reasonably be expected to know them. In those circumstances, the legal burden still remains on the applicant, but the evidential burden would then, in those circumstances, where the applicant has reasonable grounds which grounds must be disclosed in the application that the Respondent will not be in a position to refund the decretal sum if the appeal succeeds, have shifted to the Respondent to show that he would be in a position to refund the decretal sum.”

13. I have perused the order that is the subject of this Application which allowed the Respondent’s application in terms of prayer No.3 to with;-“That this Honorable Court be pleased to grant/issue an order of temporary injunction retraining the Respondent, his agents, employees or any person acting under his authority from the illegal use of the adjacent space to the Applicant’s Matatu pick-up bay on Plot. L.R. No.209/138/56”

14. From the foregoing, I can deduce that the Applicant has been restrained from using the part of the picking bay in question. I agree with the Respondent that this has not stopped the Applicant from continuing with his business from his legally allocated side.

15. On the other likely to erupting and the security risks involved, which I agree are genuinely foreseeable. However, what was issued on 25th October, 2021 was a restraining order, which in my view is incapable of being stayed.

16. The upshot of this is that the application dated 8th December, 2021 has no merit and is hereby dismissed. Costs to be in the cause.It is hereby ordered.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 7TH DAY OF JULY, 2022D. O. CHEPKWONYJUDGEIn the presence of:Mr. Waithaka counsel for ApplicantMr. Mugambi counsel for RespondentCourt Assistant - Kevin