[2019] KEHC 4761 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

COMMERCIAL AND TAX DIVISION

HCCC NO. 200 OF 2007

MOHAMMED SALIM SHAMSUDIN............................................PLAINTIFF

VERSUS

TRISHCON CONSTRUCTION COMPANY..............................DEFENDANT

DHANJI VELJI..............................................................INTERESTED PARTY

RULING

1. Through the application dated 11th February 2019 brought under, inter alia, Order 22 Rule 22 (1), Order 50 Rule 6 and Order 49 Rule 7(2) (3), the applicant/interested party seeks orders for leave to file an appeal out of time against the ruling of Honourable Opande Deputy Registrar made on 22nd November 2017. The applicant also seeks stay of execution of the decree and warrants of attachment and sale of LR No. 12833/5 (hereinafter “the suit property”) pending the hearing of the appeal.

2. The application is supported by the applicant’s affidavit sworn on 11th February 2019 and is premised in the grounds that in a ruling delivered by Makau J. on 31st January 2019, the applicant’s application dated 1st December 2017 was dismissed with costs on the grounds that the applicant had invoked the wrong provisions of the law in challenging the decision of the Deputy Registrar.

3. The applicant’s case is that the mistake of the advocate should not be visited upon him as he is dissatisfied with findings of the Deputy and intends to lodge an appeal before this court but time for appeal has lapsed. He further states that the impugned ruling by Makau J. has had the effect of paving way for the attachment and subsequent sale of the suit property which property does not belong to the judgment debtor.

4. The applicant further avers that the judgment debtor has already complied with the order of the Court of Appeal in Civil Application No. 86 of 2013 directing the defendant to deposit the sum of kshs. 16,381,035 in an interest earning joint account and that the same court issued orders of stay of execution. He states that the said sum continues to accrue interest income that will be sufficient to satisfy the decretal sum in the event the defendant’s appeal and his appeal, is unsuccessful.

5. He further states that the suit property is valued at kshs. 124,000,000 and that he stands to suffer irreparable loss if the plaintiff sells the property at an under value. He attached a copy of the valuation report to his affidavit as annexure “DV5”.He contends that he has an arguable appeal and attached a draft copy of the Memorandum of Appeal to his affidavit as annexure “DV6”.

6. The respondent/plaintiff filed a replying affidavit and grounds of opposition in response to the application and listed the following grounds:

1. The applicant moved this court on 26th June 2009 for an order to set aside the arbitral award, which application was dismissed.

2. An appeal was thereafter preferred by the applicant, being Civil Appeal Number 28 of 2013,Trishcon Construction Company Limited Versus Mohammed Salim Shamshudin & Another (2019) e KLR which appeal was dismissed with costs, on the basis of which a subsequent application seeking stay of execution cannot hold.

3. The subject agreement had been entered between the applicant and the plaintiff.

4. The issues having already been raised and ventilated in court, cannot be re-litigated afresh. The matter is already rendered res judicata.

5. Based on the facts already on record, the present application is unmerited.

6. Litigation must come to an end and the plaintiff must be allowed to enjoy the fruits of his judgment.

7. The current application as it stands is unmerited, frivolous, vexatious and a waste of judicial time.

7. Mr. Bundotich and Mr. Kamau learned counsel for the applicant and respondent respectively made oral submissions at the hearing of the application.

8. I have considered the application, the affidavit in its support, the Grounds of Opposition, replying affidavit and the counsel’s rival submissions. The main issue for determination is whether the applicant has made out a case for the granting of the orders sought. I have also considered the proceedings that have so far been conducted in this case and more specifically the ruling delivered by Makau J. on 31st January 2019 that has given rise to the present application. I note that in the said ruling, the learned Judge not only dealt with the question of whether the applicants application was properly before the court, but also with the question whether the court could set aside or vary the orders issued by the Deputy Registrar on 22nd November 2017 to the effect that LR No. 12833/5 be advertized as sold after 45 days. It is this same order for advertisement and sale of the suit land that the applicant seeks to not only stay but also to appeal against. As I have already stated in this ruling, one of the orders sought is for leave to appeal against the Deputy Registrar’s impugned ruling of 22nd November 2017.

9. Order 50 Rule 6 of the Civil Procedure Rules (CPR) grants this court the power to enlarge time for doing any act or taking any proceeding. The said order stipulates as follows:

The time for delivering, amending, or filing any pleading, answer or other document of any kind whatsoever may be enlarged by consent in writing of the parties or their advocates without application to the court.

10. Order 49 Rule 7(2) and (3) of the Civil Procedure Rules on the other hand stipulates as follows;

(2) An appeal from a decision of the registrar under the Orders referred to in subrule (1) shall be to a judge in chambers.

(3) The memorandum of the appeal, setting out the grounds of the appeal shall be filed within seven days of the decision of the registrar.

11. Having regard to the above provisions, the impugned ruling having been delivered way back in November 2017, it was expected that the appeal against the said decision of the Deputy Registrar should have been filed at best by December 2017, this was not the case as instead of filing an appeal, the applicant filed an application to set aside or vary the said orders.

12. Strictly speaking, the applicant cannot say that his application dated 1st December 2017 was dismissed/struck out for the reason that it was filed under the wrong provision. My take is that an appeal to the High Court is a completely different process from an application to set aside/or vary orders, the later being orders that are ordinarily sought from the court that granted the orders in the first place.

13. The applicant’s other grounds for filing the instant application is that he is not the judgment debtor and that his property should not be attached to settle the decretal sum. Besides the finding by Makau J. that the application dated 1st December 2017 was a nullity having been filed outside the time stipulated by the Rules, the learned judge also went ahead to consider the merits of the application before him including the issue of whether or not the impugned orders should be set aside or varied. In making a determination on the said issue, the learned judge considered the history of the case from its inception during the Arbitration upto the point where the applicant filed an application for stay or execution pending the hearing of Civil Appeal No. 28 of 2013 which application was on 27th September 2013, allowed but on condition that the decretal sum of kshs. 16,831,035/- be deposited as security within 90 days.

14. The applicant then went to the Court of Appeal through Civil Application No. Nairobi 86 of 2013 seeking to vary and set aside the order of 27th September 2013. Justice Makau had the following to say on the issue of the applicant not being a party to these proceedings

“ The applicant Dhanji Velji contends that he is not a party to this case, however the respondent submits he was a party to the Arbitration which gave rise to the award the subject of this suit. The court record reveals that the applicant had filed a preliminary objection on the enjoinment of Mr. Dhanji, which was struck out. The same issue was dealt with before Justice Muga Apondi who by his ruling delivered on 31st July 2012, dismissed the application while noting that the subject agreement had been entered into between Mohammed Salim and Dhanji Velji. The applicant has not sought court’s leave to be enjoined as a party before filing the present application. That if he knew he was not a party he should have filed application to be enjoined as a party. By his own conduct including entering into an agreement for arbitration in this matter he confirmed he was a party in this matter. He is stopped by his own conduct from stating otherwise. I find the same issue was raised before court earlier on and has been determined, hence I find that the same cannot be re-litigated a fresh.”

15. Similarly, on the issue of stay of execution, Makau J had the following to say:

“ On the issue of stay of execution, the applicant was granted conditional stay of execution within a limited period Application No. 86/2013 and Civil appeal No. 28 of 2013 which period of compliance has since lapsed following failure of the applicant to comply with the said orders when he failed to deposit the decretal sum. There are now no orders in force to which the applicant can hold on. In view of the above the Deputy Registrar did not issue any orders illegally as urged by the applicant.”

16. Having regard to the above findings on the subject of stay of execution and the applicant’s claim that he is not a party to the proceedings, I find that the two issues are res judicata having been determined by a court of concurrent jurisdiction and I cannot therefore revisit them in this ruling.

17. I further find that the applicant is guilty of non-disclosure of material facts and/or a deliberate attempt to mislead this court into granting him the orders sought, I say so because contrary to the applicant’s averments in his affidavit in support of the application that the judgment debtor has complied with the Court of Appeals order in Civil Application No. 86 of 2013 directing it to deposit the decretal sum in an interest earning accounts as a condition for stay Makau J. found that no such deposit was made and that it was the failure to comply with the order of the Court of Appeal that gave rise to the intended execution. The court found that the applicant offered the suit property as security and that he cannot be seen to turn around and pray for stay at the same time.

18. In sum, I am not satisfied that the applicant has made out a case for granting of the reliefs sought in the instant application which I hereby dismiss with costs to the plaintiff/respondent.

Dated, signed and delivered in open court at Nairobi this 4th day of July 2019.

W. A. OKWANY

JUDGE

In the presence of;

Mr. Njee for the defendant/applicant

Miss Kamau for plaintiff/respondent

Court Assistant – Margaret