[2022] KEHC 14268 (KLR)

Mombasa Highway Transport Co Ltd v Spire Bank (Civil Appeal 9 of 2019) [2022] KEHC 14268 (KLR) (7 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14268 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal 9 of 2019

OA Sewe, J

October 7, 2022

Between

Mombasa Highway Transport Co Ltd

Appellant

and

Spire Bank

Respondent

Ruling

1. Before the court for determination is the notice of motion dated July 31, 2019. It was filed by the respondent pursuant to sections 1A, 1B and 3A of the Civil Procedure Act as well as order 40 rule 7and order 51 rule 1 of the Civil Procedure Rules for the following orders:(a)Spent(b)That the court be pleased to set aside, vacate, vary and/or review the orders dated February 28, 2019 and issued on March 5, 2019. (d)That the costs of the application be provided for.

2. The grounds relied on in support of the application are that the appellant filed a suit against the respondent before the Chief Magistrate’s Court at Mombasa vide a plaint dated September 24, 2018, being Mombasa CMCC No 1994 of 2018; and that within the suit the appellant filed an application dated September 24, 2018 seeking stay of the proclamation issued by the respondent’s agents over the appellant’s property. The matter was heard and a ruling delivered on December 6, 2018 by the Chief Magistrate, Hon E K Makori by which the appellant’s application was dismissed. Being aggrieved by that turn of events, the appellant filed this appeal as well as a subsequent application for stay of execution. The appellant was granted ex parte stay orders and directed to serve the respondent. The respondent now contends that, in total disregard of the court’s direction, the appellant failed to serve the respondent with the application and thereby denied it an opportunity to respond thereto and demonstrate that the application was bad in law in so far at it sought to stay a negative order. Consequently, the ex parte stay orders were confirmed on February 28, 2018 to its detriment.

3. The application was supported by the affidavit of John Wageche, sworn on July 31, 2019 to which the respondent annexed copies of the ruling of the lower court dated December 6, 2018 as well as the ex parte order issued herein on January 22, 2019 and the final order issued on March 5, 2019.

4. In response to the application, the appellant filed a replying affidavit on October 23, 2019 sworn by one of the appellant’s directors, Seif Mohamed Seif. The appellant asserted that the application dated January 22, 2019 was duly served on the respondent and a return of service made. Thus, Mr Seif annexed to his affidavit copies of the affidavit of service in proof of service of the ex parte order. He added that, if the respondent had issues with the manner of service, then it ought to have promptly filed an application for the discharge of the orders. He urged the court to note that although the instant application is dated July 31, 2019, it was not filed until September 25, 2019; and that no explanation for that delay was given by the respondent. He consequently prayed that the application dated July 31, 2019 be dismissed with costs.

5. The application was canvassed by way of written submissions after an order to that effect were given on October 24, 2019. Consequently, the respondent’s written submissions were filed herein on January 14, 2020. Learned counsel for the respondent, Mr Muturi, proposed two issues for determination, namely, whether the application has merit and whether the orders issued on February 28, 2019 are valid in law. Counsel relied on Babs Security Services Ltd v Mwarua Yawa Nzao & 19 Others [2019] eKLR to support his argument that it was imperative for the application for stay dated January 22, 2019 to be served. He urged the court to presume that, since no evidence was annexed to the replying affidavit in proof of service, service was not effected as directed by the court.

6. Mr Muturi further urged the court to find that, since it was not until the respondent perused the court file that it discovered that it had been condemned unheard with respect to the appellant’s application dated January 22, 2019, the delay in filing the instant application was not deliberate. Counsel relied on Agip (Kenya) Limited v Highlands Tyres [2001] eKLR in which it was held that:“...Delay is a matter of fact to be decided on the circumstances of each case. Where a reason for the delay is offered, the court should be lenient and allow the plaintiff an opportunity to have his case determined on merit...”

7. On whether the orders of February 28, 2019 are valid in law, Mr Muturi took the posturing that, since what was sought to be stayed was a negative order, the same was incapable of being stayed and therefore that the orders of February 28, 2019 are invalid. He relied on Milcah Jeruto Tallam T/A Milcah Faith Enterprises v Fina Bank Ltd & Another [2013] eKLR. He accordingly prayed that the instant application be allowed and the orders dated February 28, 2019 be set aside.

8. As no submissions were filed by the appellant, I have given due consideration to the application itself and perused the affidavits filed by the parties as well as respondent’s written submissions. There is no controversy that the appellant filed a suit against the respondent before the Chief Magistrate’s Court at Mombasa vide a plaint dated September 24, 2018, being Mombasa CMCC No 1994 of 2018; and that, along with his plaint, the appellant filed an interlocutory application dated September 24, 2018 seeking stay of the proclamation issued by the respondent’s agents over the appellant’s property. The matter was heard and a ruling delivered on December 6, 2018 by the Chief Magistrate, Hon E K Makori, by which the appellant’s application was dismissed.

9. Being aggrieved by that dismissal order the appellant filed this appeal as well as a subsequent application for stay of execution. The appellant was thereupon granted ex parte stay orders on January 22, 2019 and directed to serve the respondent. The ex parte orders were confirmed on February 28, 2019; thereby staying the impugned orders of the lower court dated December 6, 2018 pending the hearing and determination of the appeal. The respondent now contends that, in total disregard of the court’s direction, the appellant failed to serve the application and consequently denied it an opportunity to respond thereto and to demonstrate that the application was bad in law in so far at it sought to stay a negative order.

10. The application was brought under order 40 rule 7 of theCivil Procedure Rules, which provides that;“Any order for an injunction may be discharged, or varied, or set aside by the court on application made thereto by any party dissatisfied with such order.”

11. In so far as the application is not seeking the setting aside of an injunction, the above provision appears misplaced. I have nevertheless considered the application in its peculiar context and the issue that then arises for determination is whether sufficient cause has been shown for setting aside the order of February 28, 2019.

12. The respondent’s basic complaint was that the appellant failed to serve it with the application dated January 22, 2019; and thereby denied it an opportunity to respond and be heard in opposition; and in particular to demonstrate that the application was bad in law in so far at it sought to stay a negative order. The record however shows that the said application was duly served and an affidavit of service filed which the court acted upon. That affidavit of service has not been impugned in any way; and therefore no justification exists for my setting aside the order. I am guided by the decision of the Court of Appeal in Shadrack Arap Baiywo v Bodi Bach [1987] eKLR, that:"There is a presumption of service as stated in the process server’s report, and the burden lies on the party questioning it, to show that the return is incorrect. But an affidavit of the process server is admissible in evidence and in the absence of contest it would normally be considered sufficient evidence of the regularity of the proceedings. But if the fact of service is denied, it is desirable that the process server should be put into the witness box and opportunity of cross examination given to those who deny the service.”(own emphasis)

13. As the court is functus officio it follows that the application dated July 31, 2019 is totally misconceived. The same is hereby dismissed with costs.It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS THIS 7TH DAY OF OCTOBER 2022OLGA SEWEJUDGE