[2024] KEHC 9350 (KLR)

Mwinzi t/a Kiberiti Apartments v Kimanzi & 2 others; Kiberiti Merchants Limited (Interested Party) (Civil Suit E11 of 2021) [2024] KEHC 9350 (KLR) (24 July 2024) (Ruling)

Neutral citation: [2024] KEHC 9350 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Suit E11 of 2021

HI Ong'udi, J

July 24, 2024

Between

Caroline Mutwa Kimanzi Mwende Mwinzi t/a Kiberiti Apartments

Applicant

and

George Ngui Kimanzi

1st Defendant

The Registrar Of Companies

2nd Defendant

The Hon Attorney General

3rd Defendant

and

Kiberiti Merchants Limited

Interested Party

Ruling

1. This ruling is in respect of two applications. The first one is dated 11th December, 2023 while the second one is dated 15th January, 2024.

2. In the application dated 11th December 2023 the 1st defendant/applicant pray for orders that there be stay of execution of the ruling delivered on the 22nd November, 2023 pending the hearing and determination of the applicant’s appeal against the said ruling.

3. The application is based on the grounds on its face and the applicant’s affidavit sworn on even date. He deposed that the plaintiff has already extracted and obtained from the court an order arising from the ruling of 22nd November, 2023 and has put in place the appropriate mechanism of implementing the said order. Further, that if the said orders are implemented/executed, this application shall become an academic exercise and the appeal in the Court of Appeal shall be rendered nugatory.

4. He deposed further that the plaintiff shall suffer no prejudice at all if the prayers sought are granted because the main suit is yet to be heard and decided. He added that the applicant would abide by all the conditions this court may grant at this stage.

5. The plaintiff/respondent opposed the application dated 11th December, 2023 vide the grounds of opposition dated 10th January 2023. She stated that in the event the applicant sought to appeal against the decision read on 22nd November, 2023, Appeal would be time barred by dint of Rule 77 (2) of the Court of Appeal Rules which states:“17, (1) A person who desires to appeal to the Court shall give notice in writing, which notice shall be lodged in two copies, with the registrar of the superior court.(2)Each notice under sub-rule (1) shall subject to rules 84 and 97 be lodged within fourteen days date the decision against the decision or which as seal is lodged”

6. The plaintiff further stated that the application was an afterthought and meant to deny her the fruits of her judgment. Further, that the applicant had not satisfied the requirements for stay of execution pending appeal since there had been inordinate delay in filing the same and no explanation for the delay was offered.

7. In addition, that the applicants had not demonstrated any substantial loss he would suffer nor offered security for costs. She went on to state that the motion had been filed in reaction to the execution proceedings and the same was therefore an abuse of the court process and should be dismissed with costs.

8. The application dated 15th January 2024 was filed by the plaintiff seeking the following orders;i.– vii - Spent.ii.Pending hearing and determination of this suit and/or issuance of further Orders, the OCS Menegai Police Station, Mwingi Police Station, Waita Police Station and Migwani Police Station be directed to provide security to the Applicant and/or her duly appointed representatives to enforce the Orders dated 2nd November, 2023 over all that property known as Kiberiti Apartments Phase 1 in Nakuru sitting on Njoro Ngata Block 1/4514 Kiamunyi, Kiberiti Apartment phase I and II in Mwingi Kitui, severally situate on various parcels of land all registered in the name of Kiberiti Merchants Limited and known as Mwingi/ Kanzanzu/ 2883; | Mwingi/Waita/ 2791, Mwingi/Mwingi/4963 and Miowani Kyamboo 2297 respectively.iii.This Court be pleased to Issue Notice to George Ngui Kimanzi to attend Court in person and show cause why he should not be cited for contempt and be detained in prison for a period not exceeding six (6) months or be fined Kshs 2,000,000/or such other Sums to be determined by Court for defying and frustrating implementation of the orders of this court dated 2nd November, 2023. iv.This Court be pleased to Order George Ngui Kimanzi to refund all monies collected as rent from all that property known as Kiberiti Apartments Phase 1 in Nakuru sitting on Njoro Ngata Block 1/4514 (Kiamunyi , Kiberiti Apartment phase I and I in Mwingi Kitui, severally situate on various parcels of land all registered in the name of Kiberiti Merchants Limited and known as Mwingi/ Kanzanzu/ 2883; Mwingi/Waita/2791, Mwingi /Mwingi/4963 and Migwani/Kyamboo/2297 since April, 2021 to date.v.Pending hearing and determination of this suit, this court be pleased to issue Orders restraining George Ngui Kimanzi either by himself, his officers, servants, agents, assigns or any other person claiming under him, from interfering with, trespassing onto or in any way committing to waste, collecting rent, or interfering with or tampering with any equipment, infrastructure, fixtures, fittings servicing all that property known as Kiberiti Apartments Phase 1 in Nakuru sitting on Noro Neata Block 1/45]4 Kiamunyi , Kiberiti Apartment phase I and II in Mwingi Kitui, severally situate on various parcels of land all registered in the name of Kiberiti Merchants Limited and known as Mwingi/ Kanzanzu/ 2883, Mwingi/Waita/ 2791, Mwin:i/Mwingi/4963 and Migwani/Kyamboo/2297. vi.George Ngui Kimanzi be condemned to pay costs of this Application; andvii.The main suit be fixed for pretrial conference on priority.

9. The application is based on the grounds on its face and the affidavit of the plaintiff/applicant sworn on even date. She deposed that she held written authority of Kiberiti Apartments to plead, sign and swear on its behalf. Further, that she also held Grant of letters of administration to the Estate of her deceased husband and co-founder Joseph Kamau Kimanzi.

10. She further deposed that pursuant to her application dated 5th May, 2021, the Court pronounced itself on 29th September, 2022. However, that the 1st defendant /respondent herein completely refused to obey those orders and frustrated its implementation. She added that the 1st defendant/ respondent’s application for stay was dismissed on 9th February 2023 meaning that the orders of 29th September, 2022 remained in force.

11. She went on to depose that all her efforts to execute were frustrated since the 1st defendant/respondents still refused to comply with the court orders. As a result, she was compelled to file the application for review and contempt application which was unopposed but he still defied the orders issued therein and purported to lodge an appeal. Further, that the orders dated 2nd November, 2023 had not been set aside and no appeal had been preferred against those orders. That unless the present application is allowed as prayed, the suit property would continue to go to waste and occasion her grave loss.

12. In response, the 1st defendant/respondent filed a replying affidavit dated 30th January 2024. He averred that the orders of 22nd November 2023 directed that rental properties be managed jointly by the parties herein. Further, that the orders were stayed by the orders issued on 14th December 2023 and they equally filed Notice of Appeal.

13. He averred further that by considering the plaintiff/ applicant’s application the court would be reducing the Appeal at the Court of Appeal to be a mere academic exercise and the same shall be rendered nugatory. That the substratum of the Appeal formed the subject matter of the plaintiff/applicants’ Application.

14. The plaintiff/applicant filed a further affidavit dated 14th February 2024, challenging the replying affidavit.

15. Both applications were canvassed by way of written submissions.1st defendant’s/applicant’s submissions to the application dated 11th December, 2023

16. The said submissions are dated 30th January, 2024 and filed by Karanja Mbugua & Company Advocates on 2nd February, 2024. Counsel in support of the application for stay of execution placed reliance on Order 42 rule 6(2) of the Civil Procedure Rules and the judicial decisions in Nesco Services Limited v CM Construction (EA) Limited [2019] eKLR and Daniel Chebutul Rotich & 2 Others v Emirates Airlines Civic Case No. 368 of 2001.

17. Counsel submitted that in the Ruling dated 6th October 2023 the Court had directed that there be an agreement between the 2nd defendant/applicant and the 1st plaintiff/ respondent on the management of the rental property known as Nakuru Municipality Block 20 /285/T6. Further, that in the event the parties could not agree, the Deputy Registrar was to choose an agent.

18. Counsel further submitted that in the Ruling of 22nd November, 2023 the Court directed that the management of the said rental property be solely done by the plaintiff. In that regard, they filed a Notice of Appeal and the instant application. That the court granted interim orders of stay of the execution of the terms thereof. additionally, that the application for stay of execution had been made before the court without unreasonable delay and they had satisfied the conditions set out in Order 42 rule 6 of the Civil Procedure Rules.

19. Counsel went on to submit that the purpose of stay of execution order pending appeal was elaborated in the case of RWW v EKW [2019] eKLR where court held as follows:“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. 9. 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.”

20. In conclusion, counsel submitted that the applicant was willing to deposit any such security that the court deemed fit and that the plaintiff would not suffer any prejudice if the prayers sought are granted.

Plaintiffs’ submissions on the application 11th December 2023 21. The said submissions were filed by Sabaya & Associates Company Advocates on 6th May, 2024. Counsel submitted on the grounds of opposition. On the ground of the application being fatally defective for referring to non-existent orders, counsel submitted that prayers 2 and 3 of the application sought for stay of execution of ruling delivered on 22nd November 2023 which was non-existent. Further, that the application dated 15th February, 2024 sought for orders amending the present application and therefore an admission that no such orders were issued. She added that the application herein was a mere academic exercise. The court’s attention was drawn to the case of Peter Maosa Nyangau v National Bank of Kenya Ltd & Another [2022] eKLR.

22. Regarding the second ground on the application being incompetent since there was no appeal pending before the Court of Appeal or any other court to warrant orders of appeal, counsel submitted that the record showed that the applicant had the habit of filing Notices of Appeal for purposes of applying for stay of execution then fail to appeal. The court’s attention was drawn to the case of Dilpack Kenya Limited v William Muthama Kitonyi [2018] eKLR, where the court held that there could no be a stay of execution pending hearing of an appeal which did not exist.

23. On the third ground on the application not having satisfied the requirements for stay of execution as provided for under order 42 rule 6 of the Civil Procedure Rules, counsel submitted that there had been delay on the applicant’s part in filing the instant motion and that he had not offered any explanation for the delay. Further, that the applicant had not demonstrated substantial loss that he was likely to suffer and neither did he offer any security for costs.

24. The fourth ground is that the applicant was approbating and reprobating on the exact orders he was complaining about. Counsel submitted that the applicant sought to appeal against the decision delivered on 28th September, 2022 but the same was time barred by dint of Rule 77(2) of the Court of Appeal Rules. She urged the court to dismiss the application herein with costs.

Plaintiff/applicant’s submissions on the application dated 15th January, 2024 25. The said submissions dated 14th February, 2024 were filed by Sabaya & Associates Company Advocates on 16th February, 2024 together with a case digest. Counsel identified the three issues for determination.

26. The first issue is whether there is an Appeal against the orders dated 2nd November, 2023 and issued on 28th November, 2023. Counsel submitted that the Notice of Appeal was a gimmick meant to trick this court into issuing orders of stay pending appeal. She relied on Rule 77 and 84 of the Court of Appeal Rules, 2022, in support.

27. The second issue is whether there is an order of stay of execution of the said orders. Counsel answered in the negative and cited the case of Peter Nyangau v National Bank of Kenya Ltd & Another [2022] eKLR, to support the position.

28. The third issue is whether the orders sought in the motion dated 15th January, 2024 are merited. She answered in the affirmative and relied on Order rule 3 of the Civil Procedure Rules, 2010.

29. Lastly counsel submitted on contempt of court and the court’s attention was drawn to the cases of James Wahome Ndegwa v Zachary Mwangi Njeru & 8 Others [2021] eKLR and Namu Wachira & 2 Others v Njeru Wchira [2015]eKLR.1st and 2nd defendants’/respondents’ submissions on the application dated 15th January 2024.

30. The said submissions were filed by Karanja Mbugua & Company Advocates and are dated 6th May, 2024. Counsel identified two issues for determination.

31. The first issue is whether the orders sought can be granted at this stage. Counsel answered in the negative for the reason that the orders sought to be enforced have been stayed by the order of this Court made on 14th December 2023.

32. The second issue relates to the instance at which the police are involved in the enforcement of civil orders. Counsel submitted that the only instance where police assistance would be ordered in execution of court orders is where the Court itself, through its officers is required to execute the judgment and decree; which was granted in favour of the party applying for police assistance.

33. Counsel while relying on the case of Namu Wachira & 2 others v Njeri Wachira (supra), submitted further that the court ought to be satisfied that that there was need for security provided by police during the execution of the court order. He urged the court to strike out the plaintiff/applicant’s application with costs the 1st, 2nd and 3rd defendants/ respondents.

Analysis and determination 34. I have considered the two applications together with the affidavits sworn in support, the replying affidavits the grounds of opposition and the submissions by the respective parties. I opine that the issue for determination by this court is whether both applications or either of them is merited.

35. I will first deal with the application dated 11th December 2023 which seeks for stay of execution of the ruling delivered on the 22nd November, 2023 pending the hearing and determination of the applicant’s appeal against the said ruling.

36. It is not in dispute that this court did not deliver any ruling on 22nd November, 2023 save for the one delivered on 2nd November 2023. This error on the application, in my opinion is self-evident and does not require an elaborate argument to be established. Further, the said error does not make the entire application defective or prejudice the respondents since the same can be heard on merits rather than letting the same be decided by procedural technicalities. The constitution in Article 159 (2) (d) of the Constitution stated that:“in exercising judicial authority, the courts and tribunals shall be guided by the following principles .........(d) justice shall be administered without undue regard to procedural technicalities.”

37. Further, In the case of Republic vs. District Land Registrar, Uasin-Gishu & Anor (2014) eKLR where Justice Ochieng held that:“.. to my mind, Justice is not dependent on Rules of Technical procedures. Justice is about doing the right thing. Pursuant to article 159 (2) (d) ........in exercising Judicial Authority, the courts ' in exercising judicial authority, the courts and tribunals shall be guided by the following principles .........(d) justice shall be administered without undue regard to procedural technicalities.”

38. Additionally, in the Court of Appeal case of Phillip Chemwolo & Another v Augustine Kubende [1986] eKLR, Apaloo J.A. recognized that:“Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case heard on merit. I think the broad equity approach to this matter is that unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs. The court as is often said exists for the purpose of deciding the rights of the parties and not the purpose of imposing discipline”.

39. In the foregoing, I see no reason to depart from the above authorities. Will therefore decide the application dated 11th December, 2023 on merit.

40. The principles guiding the grant of a stay of execution pending appeal are well settled. The same are provided for under Order 42 rule 6(2) of the Civil Procedure Rules which provides as follows:No order for stay of execution shall be made under sub rule (1) unless—(a)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; and(b)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.

41. In RWW vs. EKW [2019] eKLR, also relied on by the 1st defendant/applicant the court addressed the purpose of a stay of execution order pending appeal, see paragraph 19 above.

42. From the law and the above decision, it is clear that the purpose of stay of execution is to preserve the substratum of a case pending the hearing and determination of an appeal. Further, a successful litigant has a right and expectation to enjoy the fruits of the decision rendered in his or her favour by the court, and a respondent who has lost a case also has a right of appeal to ventilate his or her displeasure with the said decision of the court. The court has a duty to weigh and balance both situations.

43. Further, in the case of Regional Institute of Business Management v Lucas Ondong' Otieno [2020] eKLR the court observed as follows;“20. Weighing the Applicants' right to have his dispute determined fairly in a court of law or competent tribunal as provided in Article 50(1) of the Constitution of Kenya and the equally important Respondent's fundamental right that justice delayed is justice denied as stipulated in Article 159(2) (b) of the Constitution of Kenya, this court determined that there would be more injustice and prejudice to be suffered by the Applicants if they were denied an opportunity to ventilate their Appeal on merit in the event an order for stay of execution was not granted”.

44. The application herein was filed on 13th December 2023 after delivery of the impugned ruling on 2nd November 2023. There was a delay of 11 days in filing of the application but in my opinion the same delay was not inordinate.

45. On substantial loss, the appellant/applicant argued that if the stay orders are not granted, the said appeal would be rendered nugatory. The respondent on her part argued that the appellant had not shown what substantial loss he would suffer if the orders were allowed.

46. In the case of Silverstein vs. Chesoni [2002]1 KLR 867, the court observed that substantial loss was the cornerstone of both jurisdictions and the same had to be prevented by preserving the status quo because such loss would render the appeal nugatory.

47. On security the 1st defendant/applicant averred that he was willing to deposit any such security that the court deem fit.

48. As earlier noted, the grant of stay of execution is discretionary and the court will exercise this discretion on a case by case basis depending on the circumstances of the case. This court has the duty to balance rights to ensure that justice is served.

49. There being evidence of a Notice of Appeal to the Court of Appeal dated 1st December, 2023 and filed on 5th December, 2023, this court is satisfied that an Appeal has been filed. It is only fair that the 1st defendant/Applicant be granted the opportunity to exercise his right to be heard in the Court of Appeal.

50. The above being the position, I allow the prayer for stay of execution of the Ruling delivered on 2nd November, 2023 on condition that the 1st defendant/applicant deposits kshs.5,000,000/= in the parties advocates joint interest earning account within 30 days from today pending hearing and determination of the Appeal. Failure to comply will lead to an automatic lapse of the order of stay of execution with no further reference to this court. The joint account MUST be opened within the next ten (10) days.

51. In view of the above the application dated 15th January 2024 shall await the outcome of the Appeal as the orders sought therein relate to the execution of the Ruling of 2nd November 2023 which is the subject of the appeal.

52. Mention before the Deputy Registrar on 20/12/2024 to update the court on the progress of the Appeal.

53. Orders accordingly.

DELIVERED VIRTUALLY, DATED AND SIGNED ON THIS 24TH DAY OF JULY, 2024 IN OPEN COURT.H. I. ONG’UDIJUDGE