[2023] KEHC 23962 (KLR)

Nation Media Group Limited v Child Welfare Society of Kenya (Civil Appeal 174 of 2020) [2023] KEHC 23962 (KLR) (Civ) (19 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23962 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 174 of 2020

JN Mulwa, J

October 19, 2023

Between

Nation Media Group Limited

Appellant

and

Child Welfare Society Of Kenya

Respondent

Ruling

1. The Applicant in the Notice of Motion dated 8/12/2022 is the Appellant, Nation Media Group; and seeks Orders of Stay of execution of the Court orders dated 24/11/2022 requiring the Contemnors to appear before the trial Magistrate to show cause why they should not be punished for contempt pending hearing and determination of the application and the Appeal against the Judgment dated 24/11/2022.

2. It is premised on provisions of Order 42 Rule 6 (1) of (2), Order 51 Rule 1 of the Civil Procedure Rules and Sections 3A and 3B of the Civil Procedure Act; and upon grounds stated at the face of the application and Supporting Affidavit sworn on the 8/12/2022 by one Sekou Owino Head of Legal and Training at Nation Media Group.

3. In opposition to the Application, a Replying Affidavit was sworn by one Irene Mureithi, the Chief Executive Officer of the Respondent on 13/1/2023. Parties have also filed Written Submissions to urge their respective rival positions.The Court has carefully read, analyzed and considered the same.

4. The Applicant’s Case, is that the Appeal having been dismissed for lack of merits by the Judgment dated 24/11/2022, an appeal to the Court of Appeal was swiftly lodged by a Memorandum of Appeal of even date seeking an order setting aside the Judgment and decree, and substituting the same with an order allowing the appeal, on grounds stated thereof.

5. It is urged that should the orders for sentencing the Contemnors be executed, they would suffer substantial loss which is quasi-criminal in nature and a real threat to the Contemnors liberty, whose consequences cannot be undone or reversed should the appeal turn out successful.It is therefore submitted that the appeal is not frivolous, is arguable and has high chances of success.

6. The Respondent’s Case is for denial of the stay orders as such orders are not of right, but upon the Court’s discretion that ought to be exercised Judiciously and in accordance with legal principles, and only when sufficient cause has been shown to the Court’s satisfaction.It further stated that the contemnors have not taken any steps to purge the contempt, that as a result Courts are reluctant to grant a party audience or to exercise its discretion in their favour as stated in superior Courts decisions. Several such decisions are cited to buttress the holding.

7. What then is the purpose of a stay of execution order pending appeal, and are the contemnors deserving of such orders in the circumstances pertaining hereto?

8. The Court in RWW v EWW (2019)e KLR pronounced itself thus:“The purpose of an application for stay of execution pending 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. Further, in Bungoma HC Misc. Application NO. 42 of 2011 James Wangalawa and another v Agnes Naliaka observed that“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. That is what substantial loss would entail…”

10. By the impugned Judgment and subsequent orders dated 24/11/2022, the net effect was that the two contemnors, Mr. Emmanuel Juma and Mr. Edmond Nyabote deliberately and willfully disobeyed lawful and valid Court orders of the trial Court and therefore lawfully cited for contempt. Consequently, this Court directed the duo to appear before the trial Magistrate to show cause why they should not be punished for the contempt.This order is what is the subject of the Appeal pending at the Court of Appeal.

11. By the holding in RWW v EWW (Supra) the applicants are rightfully exercising their undoubted right of Appeal. Should the impugned orders of this Court be overturned on the pending appeal, what would be the effect, if the same are executed before determination of the appeal?

12. This court cannot determine what kind of punishment the trial Court would meet upon the two contemnors if not satisfied with the reasons they may tender during the hearing of the Notice to Show Cause why they should not be punished. It could be a fine or a jail term. Payment of a fine may not cause irreparable damage as it would easily be compensated by an award of damages or costs at the end. What of a jail term, which would be six months, and the same is executed? Would that also be compensable by an award or costs on damages?

13. As ably rendered in the James Wangalwa case (Supra), once a party has expressed factors that execution of an order of decree will create a state of affairs that will negate the essential core of the applicant as a successful party in an appeal, the said party’s rights ought to be protected fairly which the party would suffer substantial loss interms of provisions of Order 42 Rule 6 of the Civil Procedure Rulesseeks to protect as it would at the end render the appeal nugatory.

14. There is already an interim stay order of execution dated 8/12/2022 and extended to last upto the determination of this application.There are numerous Judicial decisions by the superior Courts on matters of stay pending appeal in contempt proceedings. The courts have been very cautious to take away litigants liberty while appeals are pending hearing and determination.

15. Among them are; Bank Ltd v Norlake Investments Ltd (2002) I EA 227, Justus Kariuki Mate v Martin Nyaga Wambora & another (2014) e KLR, National Bank of Kenya and another v Geoffrey Wahome Muotia (2016) e KLR and Rev. Jackson Kipkemboi Koskey & 7 others v Samuel Muriithi Njogu & others (2007) e KLR. The Court of Appeal has pronounced itself across board that in such cases it would exercise its discretion to allow and order stay orders pending appeal as denial would render the appeals nugatory as the litigants would have already served jail terms by the time the appeals are heard and determined.

16. Further, the superior Court rendered itself clearly that its concern is to preserve the rights of both parties, not to disadvantage any of them, and upholding the court’s duty to accord a level playing ground without prejudging the issues pending before the Appeal Court.

17. At the end, and citing the pronouncement by the Court of Appeal in Rev. Jackson Kipkemboi Koskey (supra), and upon careful consideration of all the circumstances, and in a view to preserve the parties rights pending appeal, and giving no legitimate advantage to the Applicant and the contemnors serving under it, I am of the view that this is a proper case in which I should exercise my discretion in favour of the Applicant.

18. Consequently, the application dated 8/12/2022 is hereby allowed in its entirety, but with no orders as to costs.

Orders accordingly.

DATED, DELIVERED AND SIGNED IN NAIROBI THIS 19TH DAY OF OCTOBER 2023. JANET MULWAJUDGE