[2022] KEHC 16322 (KLR)

Mumanthi & another v Nduma (Miscellaneous Civil Case E010 of 2022) [2022] KEHC 16322 (KLR) (14 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16322 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Miscellaneous Civil Case E010 of 2022

RM Mwongo, J

December 14, 2022

Between

Gitman Mumanthi

1st Applicant

Benjamin Masila Mutua

2nd Applicant

and

Domiziana Wanyaga Nduma

Respondent

Ruling

1. What is before this court is an application under urgency dated November 28, 2022, which was heard interpartes on November 29, 2022. It essentially seeks the following orders:a.An interim order to stay the sale of M/V KCM 895R which was scheduled for sale by public auction on November 30, 2022 and which auction was suspended until the delivery of this rulingb.An order pending the determination of this application, that the respondents do immediately and unconditionally discharge and release the said motor vehicle; and that such action be assisted by the OCS Embu Police Stationc.That the court be pleased to order the cross examination of the 2nd respondents by the applicant

2. The applicant seeks the stay due to the fact that they are the judgment debtor respondent was awarded Kshs 3,520,220/-following a judgment in the lower court delivered on October 25, 2021. The extracted decree of the trial court dated May 12, 2022 is for Kshs 3,801,837/- being the sum sought to be executed.

3. It is important to note by way of background and context, as noted in the respondent’s replying affidavit, that the applicant filed a certificate of urgency on March 17, 2022 seeking stay of execution. The court directed the parties to appear before it on March 23, 2022 when it gave directions, inter alia, that the applicant do avail and file an unconditional bank guarantee for the decretal sum within thirty (30) days from May 23, 2022, failing which execution could proceed. The thirty days’ period expired on March 22, 2022. The applicant did not comply with the court orders by that date. Proclamation of attachment was issued on May 13, 2022.

4. Following such failure to comply, the applicant on May 18, 2022 filed a further certificate of urgency seeking extension of time to comply with the court’s order; and also seeking further stay of execution. The court declined to certify urgency due to the delay in filing the application, and directed the applicant to serve it and fix a hearing date thereof. There is no record on the file showing that there was any compliance in service, as directed, or that a hearing date was fixed. In any event, the applicant on August 25, 2022, filed a notice of withdrawal of the application filed on May 18, 2022. This left the extant position as that pertaining on March 23, 2022.

5. On August 25, 2022, the applicant also filed an application dated August 20, 2022, under certificate of urgency for hearing during recess. It sought to enlarge time to comply with the stay conditions issued by the court on March 23, 2022, for the deposit of a bank guarantee. On the basis that the supporting affidavit did not contain the reasons for failure to comply with the court’s directions as to the filing of the bank guarantee, the court on August 25, 2022, declined to certify urgency, and directed the application to be heard in the normal course. No hearing date was fixed by the applicant as evidence of its urgent pursuit of the matter.

6. In the affidavit in support of the said certificate of August 25, 2022, the applicant attached a photocopy of a bank guarantee dated April 24, 2022. No indication was given by the applicant of the date, if any, of filing the bank guarantee or service thereof on the respondent. In the mean-time the respondent had on May 23, 2022, attached the applicant’s vehicle as exhibited in the supporting affidavit annexed to the said affidavit.

7. Two months later, on October 11, 2022, the matter came up for mention for compliance in the ordinary course. Counsel holding brief for the applicant stated in court that they had since complied by filing the bank guarantee, whilst the respondent’s counsel stated in court that there had been no compliance as nothing had been served on them. The court ordered service of the application dated August 20, 2022 and fixed the application for hearing on January 26, 2023, with liberty to apply.

8. On November 28, 2022, the applicant filed under urgency the present application dated November 28, 2022. Upon hearing the application on November 29, 2022, the court suspended the auction scheduled for November 30, 2022 until the ruling date on December 14, 2022.

Determination 9. The court has considered the parties’ submissions and authorities cited. In essence, the applicant relies on the largesse of the court’s discretion. The applicant relies on the case of Platinum Credit Ltd v Francis Aluvusi & 2others [2021] eKLR where Nyakundi, J, granting stay of execution in respect of an attached vehicle, reiterated the well-known principles for grant of stay of execution:a.That the court notes that substantial loss may result to the applicant unless the stay order is made,b.That the application has been made without unreasonable delay, andc.That security for the due performance of the decree has been availed

10. The respondent, opposing the application argued that the circumstances in the Platinum case applied where the applicant had in fact filed an appeal, so that the stay was granted pending the hearing of the appeal. Here, however, the applicant had not filed an appeal.

11. As indicated by the respondent, I note that no appeal has been filed in the present case. The applicant’s very first application filed on March 17, 2022, seeking stay of execution of the lower court’s judgment delivered on October 25, 2021, also sought leave to appeal out of time. At the time, it was not opposed by the respondent on condition that the decretal sum was deposited in court within 21 days. In the event, the court ordered deposit of a bank guarantee within a longer time of 30 days from March 23, 2022. The application was under order 22 rule 22 order 42 rules 4,6&7 and order 51 rules 1&3. A draft of a proposed memorandum of appeal was annexed to the affidavit in support of the application.

12. As already pointed out, the applicant did not comply with the court’s orders for deposit of the bank guarantee. Further, the applicant has to date not explained the reasons for delay in securing the said guarantee, so as to satisfy the court of the expediency for, and urgency in, the court issuing a stay and or enlarging time.

13. The applicant’s conduct after obtaining the orders of March 23, 2022, disclose a party that is dilatory and unintentional. They then filed a certificate of urgency on May 18, 2022, to extend time to comply with the court’s said orders, but did not attach the bank guarantee allegedly issued on April 24, 2022, or any documentation in support of the said application for extension of time. Their explanation that the delay in complying was occasioned by the fact that the amount of the judgment sum exceeded the statutory cover limit, falls flat since in their application of March 17, 2022, they had specifically stated in the motion, , its grounds and in their supporting affidavit, that they were ready to furnish the court with security in the form of a bank guarantee, and attached a form of guarantee with a limit of Kshs 50 million.

14. To make matters worse, the applicants on August 25, 2022, then withdrew the application for extension of time to comply, and substituted it with an application dated August 20, 2022 which, in the chamber summons, sought the sole prayer that the application be heard in the court vacation as substantial loss would be occasioned them if stay of execution of the judgment was not granted. This left the court in a situation where the applicants were no longer seeking time to comply with the court’s original order for deposit of the guarantee, suggesting that the guarantee was not available. Thus the court declined to certify urgency and ordered the matter to be heard in the normal course.

15. In the same application of August 20, 2022, the applicants indicate in the grounds that they seek to enlarge time to comply with the stay conditions of March 23, 2022 of depositing the bank guarantee by April 24, 2022. It was at this point that the applicants then attached the form of bank guarantee for the full decretal sum dated April 24, 2022.

16. This court deems that the guarantee being first disclosed in the applicants’ application filed on August 25, 2022, and apparently served on the respondent on August 5, 2022 but not received by the respondent until August 10, 2022, as asserted by the respondent in court on October 11, 2022, was not availed or available, prior to August 2022. The question that arises then, is whether the court is satisfied that the four (4) months’ delay in complying with the court’s order of March 23, 2022 is satisfactorily explained to enable the court to exercise its discretion.

17. The court is more persuaded by the respondent’s argument at the hearing and in its replying affidavit of November 29, 2022, that the respondent was unable to comply and thus engaged in settlement negotiations with the auctioneer as seen in the communications attached by the respondent in their affidavit.

18. More significantly however, is the question as to the delay by the applicants in filing an appeal from the judgment rendered way back on October 25, 2021. The first application since the judgment was filed on March 17, 2022, other applications to set aside having been dismissed in the lower court. it is now a year since the judgment was entered and no appeal is filed.

19. Even if I grant stay, there will be the question of granting leave to file an appeal. That will be a matter that will clearly be contested, further delaying the respondent from enjoying the fruits of its judgment, and engaging the parties in further costs and expense. Here, in this miscellaneous file, four certificates of urgency have already been filed. Consequently, with every such application costs continue to pile up. Litigation is not intended to ensure that there is no end to the dispute. In particular, there is no appeal filed and no sufficient explanation appears in the record on file.

20. Further, I note that the application herein is grounded upon order 22 rule 22 and order 40 rule 6. These provide as follows:“Order 22 rule22(1)The court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay the execution of such decree for a reasonable time to enable the judgment-debtor to apply to the court by which the decree was passed, or to any court having appellate jurisdiction in respect of the decree or the execution thereof, for an order to stay the execution, or for any other order relating to the decree or execution which might have been made by the court of first instance, or appellate court if execution has been issued thereby, or if application for execution has been made thereto.(2)Where the property or person of the judgment-debtor has been seized under an execution, the court which issued the execution may order the restitution of such property or the discharge of such person pending the results of the application.(3)Before making an order to stay execution or for the restitution of property or the discharge of the judgment-debtor the court may require such security from, or impose such conditions upon, the judgment-debtor as it thinks fit.…………………………..Order 40 rule 66. Lapse of injunction [order 40, rule 6. ] Where a suit in respect of which an interlocutory injunction has been granted is not determined within a period of twelve months from the date of the grant, the injunction shall lapse unless for any sufficient reason the court orders otherwise.”

21. Order 40 rule 6 and order 51 rule 1 CPR (2020 ed) relied upon herein, are not applicable to the merits of the present application.

22. As for order 22 rule 22, also relied upon herein. It is the applicable provision for stay of execution. However, I do not find, taking into account all the foregoing circumstances, that sufficient cause has been shown to further stay the execution of the lower court’s decree as sought by the applicant.

23. Accordingly, the application fails, but the court having noted that some negotiations were ongoing, hereby allows another fourteen (14) days for such negotiations to proceed and conclude, during which period stay shall be extant. Thereafter, if the negotiations fail, execution shall proceed and no further applications for stay shall be entertained herein.

24. The respondent shall have the costs of the application.

25. Orders accordingly.

DELIVERED AT KERUGOYA ON THIS 14TH DAY OF DECEMBER, 2022. .............................RICHARD MWONGOJUDGEIn the presence of:1. Orina for the Applicants2. Mugane holding brief for Mugendi for the Respondent3. Mr. Murage Court Assistant