[2021] KECA 1065 (KLR)

IN THE COURT OF APPEAL

AT KISUMU

(CORAM: KARANJA, OKWENGU & ASIKE-MAKHANDIA, JJ.A)

CIVIL APPLICATION NO. 82 OF 2017 (UR 53/2017)

BETWEEN

MIGORI COUNTY TRANSPORT SACCO..............................................................APPLICANT

AND

MIGORI COUNTY GOVERNMENT............................................................1STRESPONDENT

MOSES CHAMWADA......................................................................................2NDRESPONDENT

(Being an application to vary, review and or rescind the Ruling/Orders made at the Court of Appeal

in Kisumu (E. M. Githinji, H. Okwengu & J. Mohammed, JJ.A) dated the 18thOctober, 2018

in Civil Application No. 82 of 2017)

RULING OF THE COURT

[1] By a notice of motion which is undated, filed by the applicant Migori County Transport Sacco, the Court has been urged to vary, review, and/or rescind the ruling delivered on 18th October, 2018, and to vacate the orders of stay of execution granted to the respondents, Migori County Government and Moses Chamwada (1st and 2nd respondents respectively).

[2] The ruling sought to be reviewed, arose from an application brought under rule 5(2)(b) of the Court Rules, by the respondents for stay of execution of the judgment and decree of the High Court (Mrima, J) dated 28th March, 2017 in which the High Court had issued a declaration that the unilateral decision taken by the respondents to permanently close the Posta Bus Park without giving the petitioner (now applicant), an opportunity to be heard, and failure by the respondents to justly relocate the petitioner to another operational base prior to the closing of Posta Bus Park, was unconstitutional, null and void, and allowed the petitioners to continue to operate from their traditional bay at the former Posta bus park pending relocation to a designated bus park; and further ordered the 1st respondent to pay the applicant compensation in the sum of Kshs. 2,000,000.

[3] Upon hearing the motion, this Court partially granted the application for stay of execution by ordering stay of the payment of the decree relating to the sum of Kshs. 2,000,000 pending the hearing and determination of Civil Appeal No. 110 of 2017, that had been filed by the respondents against the High Court Judgment, but declined to issue an injunction restraining Migori County Transport Sacco and its officials/owners from carrying out public transport business, by parking and dropping off passengers in Migori town from everywhere and anywhere else, except from designated bus parks in Migori County, pending the hearing of the appeal.

[4] It is those orders that the applicant (Migori County Transport Sacco) wishes to have varied, reviewed and/or vacated. The applicant maintains that the respondents have disobeyed the terms of the stay orders and continue to frustrate the applicant denying them the opportunity to conduct their business, and that the respondents are not keen to have the matter resolved as they are enjoying the stay orders.

[5] The applicant has filed written submissions in which they contend that as a public transport provider it has suffered grievous financial losses as a result of the respondents’ disregard of the High Court orders and the orders made by this Court; that the 1st respondent has a duty to obey the law and the applicant has no other option of realizing the fruits of the order made by the Court, and are therefore being denied access to justice. The applicant therefore seeks to have the orders made by this Court on 18th October 2018 reviewed, and the applicant and its members allowed to continue operating on their traditional bay at Posta Bus Park.

[6] The respondents have filed written submissions opposing the applicant’s motion. The respondents point out that the application is defective as the date on which the supporting affidavit was sworn does not appear on the jurat. That notwithstanding, the application is also incompetent, as the Court lacks the jurisdiction to rescind or vary the orders that were made on 18th October, 2018. The respondents relied on Standard Chartered Financial Services Limited & 2 Others v Manchester Outfitters (suiting division) Limited (now known King Woolen Mills Limited) & 2 others[2016] eKLR, for the proposition that Rule 57 of the Court Rules is limited in scope and does not allow for re-opening, reviewing and re-determining a judgment of the court or a matter that has been closed unless the review is for purposes of extending time for doing of a particular act where no time has been specified.

[7] The respondents argue that the orders made by this Court on the 18th October, 2018 were made on merit after a full hearing, and that there is no material placed before the Court to show that the decision did not have any merit. In addition, that the applicant has not availed any material to show that it is suffering prejudice while operating from the designated bus parks. The respondents urged that granting the applicant’s prayer would not be in the interest of justice.

[8] We have considered the motion which is before us. It is evident that the Court granted a conditional order for stay of execution on the 18th October, 2018. Although the applicant contends that the respondents have not complied with the order that was issued by the Court, the applicant has not demonstrated to this Court how the respondents have failed to comply or any efforts that it has made to have the respondents comply with the orders that were made by the Court, or to have the respondents committed to jail for contempt or disobedience of the Court order. Moreover, the orders made by the Court were interlocutory pending the hearing of an appeal that has been filed by the respondents. The applicant has not demonstrated what efforts, if any, that it has made to have the appeal heard so that the issues can be finally disposed of by the Court.

[9] It is apparent to us that the applicant’s motion is no more than an attempt to have a second bite of the cherry by having the respondents’ application for stay of execution, which was determined by this on 18th October, 2018 revisited by the Court. We find that there is no justification for this Court to rescind the orders that were made on the 18th October, 2018. If anything apart from the stay regarding the payment of the compensation, the Court did not grant any stay or injunction in regard to the operations of the applicant. Therefore, the order of the High Court allowing the applicant to continue operating from its traditional bay at Posta Bus Park still remains in force.

Furthermore, as stated in Standard Chartered Financial Services Limited v Manchester Outfitters(supra) that was cited by the respondents’ counsel, Rule 57 of the Court that allows for applications to the Court to be varied or rescinded, is not applicable as the conditions required under Rule 57(1) have not been satisfied.

[10] For all these reasons we come to the conclusion that this application has no merit. It is accordingly dismissed with costs to the respondents

Dated and delivered at Nairobi this 29thday of January, 2021.

W. KARANJA

JUDGE OF APPEAL

HANNAH OKWENGU

JUDGE OF APPEAL

ASIKE-MAKHANDIA

JUDGE OF APPEAL

I certify that this is a truecopy of the original.

Signed

DEPUTY REGISTRAR