[2022] KEHC 14337 (KLR)

Muthengi (Legal representatives of the Estate of Mark Ndiku & 2 Others) v Ndiku (Miscellaneous Civil Case E008 of 2021) [2022] KEHC 14337 (KLR) (18 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14337 (KLR)

Republic of Kenya

In the High Court at Kitui

Miscellaneous Civil Case E008 of 2021

RK Limo, J

October 18, 2022

Between

Johnson Mwendwa Muthengi

Applicant

Legal representatives of the Estate of Mark Ndiku & 2 Others

and

James Mulwa Wa Ndiku

Respondent

(Being an Application dated 22nd April, 2021 seeking stay of execution of the Judgement dated 15th May, 2012 delivered by SPM in Civil Suit No. 12 of 2009. )

Ruling

1. The matter before the court is an application dated April 22, 2021 seeking a stay of execution of the judgment dated May 15, 2012 delivered by senior principle magistrate in Civil Suit No 12 of 2009. The application is brought under the sections 1A, 1B, 3, 3A, 79G and 95 of the Civil Procedure Act (cap 21), order 42 rule 22 of the Civil Procedure Rules 2010 and sections 3A and 3B of the Appellate Jurisdiction Act.

2. The applications seek the following reliefs;i.That the application herein be certified urgent and be heard expeditiously ad ex parte in the first instance. (spent)ii.That there be stay of execution of the lower court’s judgment in Kitui Senior Principal Magistrate’s Court Case No 12 of 2009 dated May 15, 2012 pending hearing and determination of this application and the bankruptcy/receiving application in HCCOMMNIP/E010/2021iii.That the applicant be granted leave to appeal out of time against the judgment of honourable A G Kibiru dated May 15, 2012iv.That this honourable court be pleased to issue orders directing the firm of Malonza & Co Advocates be enjoined as 4th respondents.v.This honourable court do issue such other directions and/ or orders as the court may deem just and expedient to grant.vi.Costs of this application be provided for.

3. The application is premised on the following grounds;i.The applicant has filed for a bankruptcy/ receiving order in Milimani High Court HCCOMMINP/E10/2021 which is scheduled to be mentioned in May 12, 2021 before Justice Muigai.ii.The applicant was not a party in the lower court’s Kitui Senior Principal Magistrate’s Civil Case No 12 of 2009 yet the judgment therein was delivered against him and the 2nd and 3rd respondents.iii.The applicant was explicably and mysteriously enjoined in the lower court’s case as a third party completely without his knowledge.iv.The applicant after being enjoined as such third party was never served with warrants of attachment of his movable property in execution of a decree for money in the lower court’s case.v.The applicant a day after being served with the warrants of attachment, vigilantly filed an application of stay of execution dated September 10, 2020 but the application was dismissed by the trial court on October 21, 2012. vi.Upon perusal of the lower court’s documents, it became apparent that the firm of Malonza & Co Advocates had entered appearance on behalf of the applicant as a third party and without his knowledge, permission and/or instructions.vii.The applicant’s property is under attachment by Kande Auctioneers on behalf of the 1st respondent.viii.The applicant is desirous of defending himself in Kitui Senior Principal Magistrate’s Civil Suit No 12 of 2009 in which he was condemned unheard for a mistake of the 2nd and 3rd respondents who never served him with a third party notice in that suit.ix.The applicant stands to suffer great and irreparable loss and damage if the orders sought herein are not granted.x.The applicant has moved to this honourable court without inordinate delay since he came to learn of the existence of the lower court case.xi.The respondents will not suffer any prejudice if this application is certified urgent and orders therein granted in the interim.

4. The application is supported by the affidavit of Johnson Mwendwa Muthengi on a date not shown at the jurat. He had basically reiterated the above grounds as listed in the face of this application.

5. The cause of action in the subject matter arose from a road traffic accident which occurred on or about July 24, 2008. The applicant were blamed by the respondent for causing the accident. Judgement in the matter was delivered on May 15, 2012 where the respondent was awarded Kshs 1,630,000.

6. The 1st respondent has opposed the application vide his replying affidavit sworn on September 16, 2022 and filed on September 19, 2022. In his affidavit, the 1st respondent is asking for dismissal of the application for the reason that the applicant was actually represented in the trial court, and that he has failed to disclose to this court that there are five other similar matters he has filed seeking orders of stay.

7. The applicant is seeking a stay of execution..

8. Grant of stay of execution pending appeal is provided for under order 42 rule 6 of the Civil Procedure Rules, the relevant part of which states as follows:1. ‘‘No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of in so far as the court appealed from may order but, the Court Appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.2. No order for stay of execution shall be made under subrule (1) unlessa.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………….”

9. An applicant seeking a stay of execution of a decree or order pending appeal is obliged to satisfy the conditions set out in order 42 rule 6(2) namely;a.‘‘that substantial loss may result to the applicant unless the order is made,b.that the application has been made without unreasonable delay, andc.that such security as the court orders for the due performance of such decree or order as may ultimately be binding on the applicant has been given.’’

10. In Butt v Rent Restriction Tribunal [1979], the Court of Appeal stated what ought to be considered in determining whether to grant or refuse stay of execution pending appeal and stated that;‘‘…the power of the court to grant or refuse an application for a stay of execution is a discretionary, and the discretion should be exercised in such a way as not to prevent an appeal. Secondly, the general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judge’s discretion. Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the applicant at the end of the proceedings. Finally, the court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances of the case and its unique requirements.’’

11. The court, in RWW v 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.’’

12. On substantial loss, as observed in James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR:-“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.” (Emphasis added).

13. The main contention by the applicant is that he was not served and was condemned without being given a chance to be heard but is that true?

14. His contention is that he was condemned unheard in the trial court as he was not served with a third party notice. The 1st respondent has however attached a memorandum of appearance dated August 21, 2009 filed by Malonza & Co Advocates on behalf of the applicant. The same was filed in court on August 24, 2009. There is a defence of 3rd party dated August 21, 2009 and filed on August 24, 2009 filed on behalf of the applicant by his aforementioned advocates. The applicant’s assertion is therefore untrue. He has also pleaded that he would suffer substantial loss in the event the order for stay of execution is declined.

15. He contends that he would suffer substantial loss unless stay is granted but in his own admission through counsel at hearing of this application, he concedes that he has other matters pending elsewhere where the reliefs sought are similar in effect with the relief being sought here. I am not persuaded that he would suffer loss. His conduct in any view is that of a litigant who would go to great lengths to frustrate or stop execution being levied against him.

16. The applicant has also not offered any security to satisfy the decree passed. The court in Absalom Dova v Tarbo Transporters [2013] eKLR held as follows onThe issue of security;‘‘The discretionary relief of stay of execution pending appeal is designed on the basis that no one would be worse off by virtue of an order of the court; as such order does not introduce any disadvantage, but administers the justice that the case deserves. This is in recognition that both parties have rights; the appellant to his appeal which includes the prospects that the appeal will not be rendered nugatory; and the decree holder to the decree which includes full benefits under the decree. The court in balancing the two competing rights focuses on their reconciliation.’’

17. On the question of appeal, an aggrieved party has 30 days to appeal against a judgement from the subordinate court. Section 79 G of the Civil Procedure Act provides;“Every appeal from a subordinate court to the High Court shall be filed within thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order.’’

18. The court in Edith Gichungu Koine versus Stephen Njagi Thoithi [2014] eKLR restated guidelines for consideration whenever an application for extension of time is brought before a court, the court stated;‘‘Nevertheless, it ought to be guided by consideration of factors stated in many previous decisions of this court including, but no limited to, the period of delay, the reasons for the delay, the degree of prejudice to respondent if the application is granted, and whether the matter raises issues of public importance, amongst others.’’

19. The Supreme Court in the case of Nicholas Kiptoo Korir Arap Salat versus IEBC and 7 Others [2014] eKLR enunciated the principles applicable in an application for leave to appeal out of time. The court state inter alia that: -‘‘The underlying principles a court should consider in exercise of such discretion include;i.Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;ii.A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the courtiii.Whether the court should exercise the discretion to extend time, is a consideration to be made a case- to-case basis;iv.Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;v.Whether there will be any prejudice suffered by the respondent if the extension is granted;vi.Whether the application has been brought without undue delay.’’

20. The applicant has not in my opinion has not given satisfactory reason for the delay in filing appeal. In fact, he has not offered any explanation at all. He has not attached a draft memorandum of appeal for the court to determine whether he has an arguable appeal with a likelihood of success. His main ground for seeking orders of stay are that he was condemned unheard in the trial court. However, the 1st respondent has exhibited a defence filed by the applicant’s advocates on his behalf in the trial court. As such, in the event he was to file an appeal on that ground, his chances of success would be very minimal. The 12-years delay in bringing this application is unexplainable.

21. The reasons for 12 years’ delay having not been offered, this court finds that the only reason of non-service or non-representation is a lame excuse rather than a sufficient reason because as I have found out above he was duly represented by an advocate who could not appear in court unless fully instructed by the applicant. The applicant has therefore, not demonstrated good faith in this matter which is crucial because in the absence of good faith, a party cannot successfully invoke a discretion of a court. He who comes to equity must do so with clear hands. In the premises, this court finds no merit in the application dated April 24, 2021. The same is dismissed with costs.

DATED, SIGNED AND DELIVERED AT KITUI THIS 18TH DAY OF OCTOBER, 2022. HON JUSTICE R K LIMOJUDGE