[2023] KEHC 25305 (KLR)

Mwandaa & 4 others v Mwandoe & another (Civil Appeal E060 of 2021) [2023] KEHC 25305 (KLR) (15 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25305 (KLR)

Republic of Kenya

In the High Court at Voi

Civil Appeal E060 of 2021

GMA Dulu, J

November 15, 2023

Between

Benjamin Mwandaa

1st Appellant

Anderson Mwaumba

2nd Appellant

Hamisi Kalela

3rd Appellant

Peter Maghanga

4th Appellant

Abdalla Kiko

5th Appellant

and

Elijah Mwandoe

1st Respondent

Suleiman Mwambogha

2nd Respondent

Ruling

1. Before me is a Notice of Motion dated 10th March 2023 filed under order 42 rule 6 of the Civil Procedure Rules and section 3A of the Civil Procedure Act (Cap.21).

2. The application has the following prayers:-1. (Spent).2. (Spent).3. That the court grants stay of execution of the decree in Voi CMCC No. 161 of 2018 pending hearing and determination of the appeal herein.4. The costs of the application be in the appeal.

3. The application has grounds on the face of the Notice of Motion that the ruling of the trial court has already been appealed against in this court and that the appeal is likely to be rendered nugatory if stay orders are not granted.

4. The application was filed with a supporting affidavit sworn by Benjamin Mwandaa, one of the applicants on 10th March 2023 in which it is deponed that the trial court dismissed the application for review, and that the said ruling has been appealed from to this court, and that the applicants have been issued with a Notice to Show Cause why they should not be committed to civil jail.

5. The application is opposed through a replying affidavit sworn by Elijah Mwandoe on 15th May 2023 in which it was deponed that judgment was delivered in CMCC Voi Suit No. 161 of 2018 on 18th July 2019, and that the respondent had already proceeded to execute, and that thereafter the applicant rushed to court with the present application which had no merits as the applicants do not stand to suffer any prejudice if stay order is not granted.

6. The application was canvassed through written submissions. In this regard, I have perused and considered the submissions filed by Isika & Associates Advocates for the applicants, as well as the submissions filed by Elijah Mwandoe in person .

7. From the facts and evidence placed before me, it is clear that an appeal has been filed against the ruling in contest. It is also not in dispute that a Notice to Show Cause has been issued for committing the applicants to civil jail.

8. I find that this application was filed without unreasonable delay.

9. With regard to whether the applicants will suffer substantial loss if the stay orders sought are not granted, in my view, in terms of order 42 rule 6 of the Civil Procedure Rules, it cannot be said that someone who is put in civil jail before determination of a live appeal will not suffer prejudice or substantial loss if the appeal ultimately succeeds. I thus find that the applicants will suffer substantial loss if the stay orders sought are not granted.

10. With regard to provision of security by the applicants, as this is an issue that relates to the applicants intended committal to civil jail, I find no reason to order that they provide security.

11. Consequently, I allow the application on the following conditions:-1. I grant stay of execution of the decree in Voi CMCC No. 161 of 2018 pending the hearing and determination of the appeal herein.2. The stay orders above granted will only be effective for one (1) year from today, within which period I expect the appeal to be heard.3. The costs of the application will abide the decision in the appeal.

DATED, SIGNED AND DELIVERED THIS 15TH DAY OF NOVEMBER 2023 AT VOI IN OPEN COURT.GEORGE DULUJUDGEIn the presence of:-Alfred – Court AssistantBenjamin Mwandaa - ApplicantAnderson Mwaunda - ApplicantHamisi Kalela - ApplicantPeter Maghanga - ApplicantElijah Mwandoe - RespondentSuleiman Mwambogha - Respondents