[2022] KEHC 622 (KLR)

Mzame v Zablon Mwanyumba Lalu (Suing as the Administrator of the Estate of Allen Warito Lalu (Deceased) & another (Civil Appeal E1 of 2021) [2022] KEHC 622 (KLR) (2 June 2022) (Ruling)

Neutral citation: [2022] KEHC 622 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal E1 of 2021

A. Ong’injo, J

June 2, 2022

Between

Cromwell Mzame

Applicant

and

Zablon Mwanyumba Lalu (Suing as the Administrator of the Estate of Allen Warito Lalu (Deceased)

1st Respondent

Salome Yieko

2nd Respondent

(This was a stay of execution of the judgment and decree of Voi Chief Magistrate Hon. A.N Karimi in Zablon Mwanyumba Lalu (Suing as the administrator for the estate of Allen Warito Lala) v Cromwell Mzame and Salome Yieko, Voi PMCC No. 131 of 2018 as varied vide the judgment of this Court in this appeal delivered on 10th March 2022)

Ruling

1. By an application dated 7th April 2022 the Applicant sought the following orders reproduced herein verbatim; -a)That service of this application in the first instance be dispensed with, the same heard ex-parte and certified urgent.b)That upon the hearing of this application exparte there be a stay of execution of the judgment and decree of Voi Chief Magistrate Hon. A.N Karimi in Zablon Mwanyumba Lalu (Suing as the administrator for the estate of Allen Warito Lala) v Cromwell Mzame and Salome Yieko, Voi PMCC No. 131 of 2018 as varied vide the judgment of this Court in this appeal delivered on 10th March 2022 pending the hearing and determination of the intended appeal to the Court of Appeal.c)That upon the hearing of this application interparties there be a temporary stay of execution of the judgment and decree of Voi Chief Magistrate Hon N . Karimi in Zablon Mwanyumba Lalu (Suing as the Administrator of the Estate of Allen Wairito Lala v Cromwell Mzame and Salome Yieko, Voi PMCC No. 131 of 2018 as varied vide the judgment of this Court in this appeal delivered on 10th March 2022 pending the hearing and determination of the intended appeal to the Court of Appeal.d)That honorable court do extend time for Appellant to give notice of intention to appeal against its judgment dated 10th March 2022 by 14 days from the date of delivery of the ruling in this applicatione)Costs

2. Prayer (a) and (b) have been spent and prayer (d) was granted by consent of parties on 11th May 2022.

3. The Application is supported by the affidavit of Cromwell Mzame Ng’ambwa sworn on the even date. He avers that Judgment of this Court in Cromwell Mzame v Zablon Mwanyumba Lalu (Suing as Administrators of the Estate of Allen Warito Lalu (Deceased) Civil Appeal No. E1 of 2020 at Voi was delivered on 10th March 2022 in his absence and the court registry only transmitted the judgment on 7th April 2022. This occasioned lapse of the of the period of appeal by 13 days and stay orders given after judgment lapsed as well. The Applicant avers that he should be granted stay of execution as delay occasioned is not ordinate and will not be prejudicial to the Respondent in any way. Applicant further averrers that the security of the payment of the decretal amount of Ksh 1, 655,161. 00 should remain the in the joint interest account of the Advocates as there is real risk that Respondent will be unable to refund the sum in case the appeal succeeds and this would render the intended appeal nugatory.

4. The application was opposed vide the replying affidavit of the Respondent’s Advocate Jamuel Mwakandana Kiwinga sworn on 6th May 2022. He prays that the Court dismisses the application based on the grounds that judgment was not transmitted to the Applicant on 7th April 2022 as claimed but it was read upon delivery by the Court on 10th March 2022. It is the Applicant; he avers that sought the copy of the judgment on 7th April 2022. He further averred that the Applicant has refused to execute the requisite forms necessary for release of sums owed to the Respondent from joint interest account hence there is no risk of the same being released to the Respondent. Moreover, the Respondent is gainfully employed and would be able to return the decretal sum in the event that the appeal succeeds. The Applicant has also not demonstrated that the said appeal has any chance of success reasons whereof the application should be dismissed, with costs to the Respondent.

5. Applicant was granted orders to file notice of intention to appeal on 11th May 2022.

6. Application was canvassed vide written submissions.

7. Applicant filed submissions dated 13th May 2022. It was submitted that the Respondent’s replying affidavit is merely hearsay evidence and its sworn by the Advocate and is of zero probative value and cannot sustain an objection of the application. They rely on Francis Kimutai Bii v Kaisugu (Kenya) LimitedELRC No. 25 of 2015 Kericho and Barack Ofulo Otieno v Istarect Limited [2015] eKLRand Regina Waithira Mwangi Gitau v Boniface Nthenge [2015] eKLR

8. It is submitted that stay of execution should be granted forthwith as no substantial delay was occasioned when filing notice of appeal and the notice has been duly filed. Lastly the Applicant risks suffering irreparable damage if the stay is not granted as the Respondent will not be in a position to refund the decretal sum if the appeal succeeds. The decretal sum should remain in the fixed joint interest account. They rely on the cases of Halai & Another v Thornton & Turpn[1963] 1990 KLR 365 andKCBvKPCU C.A No. 85 of 2010 and Jacto Transporters and Tour Agency Ltd and Another v Jason Njiru Kithinji and Another HCC No. 197 of 2003 and National Industrial Credit Bank Limited v Aquina Francis Wasike and Another [2006] eKLR and Tobias Ongany Auma & 5 others v Kenya Airways Corporation LtdHCCNo. 4434 of 1992

9. Respondent filed submissions dated 19th May 2022. It was submitted that Applicant’s assertion that the replying affidavit ought to be struck out is unfounded in law as there were no factual issues in contention. Reliance was placed on Wachira Karani v Bildad Wachira[ 2016] eKLR.

10. Respondent further submits that the Court isfunctus officio as the Applicant is inviting the Court to review its own judgment. They rely on Chembe Katana Changi v Ministry for Lands & Settlement & 4 others[2014] eKLR; Election Petitions Nos 3,4 & 5 Raila Odinga & Others v IEBC& Anyanzwa Advocates v Kenya Revenue Authority & Another [2021]

11. It is further submitted that that the Applicant has not met the conditions for grant of stay as set out in Lalji Shimji Builders & contractors v Nairobi Golf Hotels Kenya Limited as he has failed to demonstrate how he will suffer irreparable harm if application is not allowed. The Applicant has also failed to furnish any evidence proving that the Respondent is man of straw who will be unable to refund the decretal sum if appeal succeeds.

Analysis and Determination 12. Having read the pleadings filed as well as the submissions and cited decisions I find that the issues for determination are;a)Is this Court functus officio?b)Has the Applicant met the conditions necessary for grant of stay?c)Which party is entitled to costs?

13. It is the Respondent position that this Court is functus officio having been the trial court in this matter. However, it is trite law that a court does not become functus officio merely because it has delivered the final decision in civil proceedings, the Court still retains power to undertake actions included but not limited to review; stay; execution and acts leading to closure of the file. This was aptly provided in Leisure Lodge Ltd v Japhet Asige and another [2018] eKLR where the court opined thus,“On the question that this court is functus officio, I do find that a trial court retains the duty and jurisdiction to undertake and handle all incidental proceedings even after a final judgment is delivered provided such proceedings do not amount to re-trying the cause but geared towards bringing the litigation to an end. That is the reason, the court must undertake settlement of a decree, if parties cannot agree, handle applications for stay, review, setting aside and even execution proceeding including applications under Section 94 of the Act.’’ See also; Mombasa Bricks & Tiles Ltd & 5 Others v Arvind Shah & 7 Others[2018] eKLR.

14. It is my finding that this Court has jurisdiction as the issue brought forth deals with grant of stay of execution and it does not invite the Court to go into the merits of its own decision.

15. On the second issue; principles upon which the court may stay the execution of orders appealed from are well settled. Order 42 Rule 6 of the Civil Procedure Rules stipulates: “No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except 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 orders set aside. No order for stay of execution shall be made under sub rule 1 unless: -The Court is satisfied that substantial loss may result to the 1st Applicant unless the order is made and that the application has been made without unreasonable delay; and 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.

16. In Butt vs. 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. The court opined; “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.”

17. From the above legal provision and authority, it follows that an Applicant must be able to prove the following for the court to grant stay of execution; - the application has been made without unreasonable delay; substantial loss may result to him/her unless the order is made; the applicant has given such security as the court orders for the due performance of such decree or order as may ultimately be binding on him.

18. The Applicant herein filed for stay of execution on 7th April 2022 despite Judgment in the matter being rendered on 10th March 2022 in the presence of both parties. However, the judgment was transmitted to the Applicant on 7th April 2022 from evidence that’s on record. What constitutes unreasonable delay varies from the circumstances of each case. The Court in Mohsen Ali & another v Priscillah Boit& anotherE&L No. 200 of 2012[2014] eKLRwhere stated: “The question that arises is whether this application has been filed after unreasonable delay. What is unreasonable delay is dependent on the surrounding circumstances of each case. Even one day after judgment could be unreasonable delay depending on the judgment of the court and any order given thereafter’’ In my considered opinion I find that the delay in filing which was made 28 days after rendering of judgment in the matter is not inordinate and a reasonable explanation was given, moreover no prejudice will be suffered by the Respondent in any way. I find that this condition has been met.

19. On the issue of substantial loss, it is essential that the Applicant prove that he stands to suffer substantial loss if stay of execution is not granted. In Kenya ShellvKiburu and Another (1986) KLR 410, Platt Ag.JA the court opined “It is usually a good rule to see if Order XLI Rule 4 of the civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the Applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss in its various forms, is the cornerstone of both jurisdictions for granting stay. That is what has to be prevented. Therefore, without this evidence, it is difficult to see why the Respondents should be kept out of their money. It is the Applicant assertions that the Respondent is a man of straw who will be unable to pay the decretal sum if the appeal is successful. The Respondent herein averred that the affidavit that he is gainfully employed but failed to provide any evidence to prove this. It is essential that once the Applicant raises a reasonable fear as to the means of the Respondent, the Respondent ought to demonstrate that he has resources. This was provided in Court of Appeal in National Industrial Credit Bank Ltd v Aquinas Francis Wasike & another [2006] eKLR However, in spite of this courts are still tasked to balance the rights of the parties in such instances. The Courts in RWW vs. EKW[2019] eKLR, provided that: “…. 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.” From the forgoing I find that the court should balance rights of both parties and in so doing I find that the Applicant has partially met this condition.

20. On the last ingredient; security, it is agreed by both parties that the decretal sum has been deposited in a joint interest account of the Advocates in the case. I find that condition of security has been duly met.

21. On the issue of costs, it is trite law that costs are discretionary and court has jurisdiction to grant orders sought by virtue of Section 27 of the Civil Procedure Act. This is buttressed in the case of Levben ProductsvsAlexandra films SA (PTY) Ltd1957 (4) SA 225(SR) and Party of Independent Candidate of Kenya & another v Mutula Kilonzo & 2 others (2013) eKLR.

22. Having considered the application, replying affidavits and responses filed, balancing the interests of both parties I make the following orders; -a)That half the decretal sum to be released to the Respondent within 14 days from the date of ruling.b)The balance of the decretal sum is to be retained in the fixed deposit account subject to the applicant filing an Appeal within the statutory period. Failure by the Applicant to comply, the balance of the decretal sums to be released in its entirety to the Respondent.c)Costs of Application to the Respondent.

DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS THIS 2ND DAY OF JUNE 2022HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of:Ogwel- Court AssistantMr Jengo Advocate for ApplicantMr. Kiwinga for the Respondent.HON. LADY JUSTICE A. ONG’INJOJUDGE03/06/2022