[2022] KEHC 9979 (KLR)

Natural World Mombasa Safaris Ltd v Karuri (Civil Appeal E045 of 2022) [2022] KEHC 9979 (KLR) (Civ) (7 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9979 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E045 of 2022

JN Mulwa, J

July 7, 2022

Between

Natural World Mombasa Safaris Ltd

Appellant

and

Monica Nyangonyo Karuri

Respondent

Ruling

1. Before the court are two applications dated 1/4/2022 filed by the appellant; and the other dated 19/4/2022 filed by the respondent. Directions were taken that both Applications be heard simultaneously by way of written submissions, which parties have filed.

2. The appellant filed the application dated 1. 4.2022 under provisions of Order 42 Rule 6 of the Civil Procedure Rules(CPR) seeking stay for execution of the judgment in the trial court dated 25/3/2022 in Milimani CMCC No. 1304 of 2020 pending hearing and determination of this appeal. The application is opposed by a Replying Affidavit sworn on the 19/4/2022 sworn by the respondent herein.

3. The application dated 1/4/2022 was filed by the Respondent under sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 Rule 1 & 3 of the Rules. The Applicant/Respondent seeks that Appeal herein be dismissed, and all consequential interlocutory orders therein be vacated. On grounds that the Appellant seeks to have proceedings taken by the lower court on 2/2/2022 in Milimani CMCC No. 1304/2020 be set aside and the case be heard afresh, and that the Lower Court heard and determined the suit by a judgment dated 25/3/22 hence the substram of the appeal has become moot and therefore overtaken by events.

4. It is further stated that this court’s orders dated 25/3/2022 staying the proceedings in the lower court were issued after the judgment had been delivered. The supporting affidavit was sworn on the 19/4/2022 by the Respondent.

5. I have seen the uncertified judgment of the trial court dated 25/3/2022 wherein both parties advocates were present (exhibit MK1). I have also considered the parties submissions.

6. On the onstart, it is important to note that the trial court’s judgment was delivered on the 25/3/2022, the same date when the court (Hon. Sergon J.) gave its orders thus:i.There shall be an order of stay of all further proceedings in Milimani CMCC No. 1304/2020 pending hearing and determination of the appeal herein.ii.Costs of the motion to abide the outcome of the appeal.

7. The above ruling was in respect to the Appellant’s application dated 7/2/2022 wherein a stay of all proceedings in the lower court were sought.

8. The appellants submissions are dated 2/6/2022 whereas the respondents are dated the 3/6/2022. I have considered the same against the two court orders of the two courts.

9. The issue that arise from determination in my view is only one; Whether by the trial court’s interlocutory judgment delivered on the 25/3/2022 moments before orders of stay of proceedings in the said court, the Appeal filed herein became moot and or overtaken by events.

10. The interlocutory appeal was filed by a Memorandum of Appeal dated 7/2/2022 and filed on the 8/2/2022. The grounds of the appeal as seen from the Memorandum of Appeal are, in the main;“That the trial magistrate erred in dismissing the Appellant’s objection to production of treatment notes, medical reflets and other documents by the Respondent yet not agreed during pre-trial conference thus supplantine substantive justice with rules of procedure, and thus locked out the defence from leading its defence and thus urged the court to set aside the orders/ruling of the trial court.

11. Together it the Appeal, the Appellant filed an application of even date seeking for orders that this court stay any further proceedings of the case before the trial court pending hearing and determination of the application.

12. No interim orders were allowed by the court. The application was thus heard by way of written submissions, leading to the Ruling of the Hon. Justice Sergon J. on the 25/3/2022, allowing the same, and staying all further proceedings until the appeal is heard and determined.

13. It appears that as at 25/3/2022, the trial court had proceeded to hear and determine the case by a judgment delivered a few moments before the ruling by the judge, on the same day.

14. The issue of “mootness” of a ruling, order or judgment has been discussed in several decisions relied upon by both parties to this application. Black’s Law Dictionary 10th Edition defines the term “moot” to mean – having no practical significance, hypothetical or academic, and a “moot case” as a matter in which a controversy no longer exists, a case that presents only an abstract question that does not arise from existing facts or rights”.

15. The Court of Appeal in Okiya Omtatah Okoiti & 2 others vs Attorney General & 4 others [2020] at paragraph 65, while citing the case of Daniel Kaminja & 3 others (suing as Westland Environment Caretaker Group) vs County Government of Nairobi [2019] e KLR, Mativo J stated that:“A matter is moot if further legal proceedings with regard to it can have no effect, or events have placed it beyond the reach of the law. Thereby the matter has been deprived of practical significance or rendered purely academic. Mootness arises when there is no longer an actual controversy between the parties to a court case and any ruling by the court would have no actual practical impact”.

16. And that:“No court of law will knowingly act in vain … a Suit is academic where it is merely theoretical, makes empty sound and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to practical situations of human nature and humanity.

17. The doctrine of mootness was further discussed in the case National Assembly of Kenya & another vs Institute of Social Accountability & 6 others[2017] e KLR when the court rendered that:“…it is clear that the mootness doctrine is not an abstract doctrine. Rather, it is a functional doctrine founded mainly on principles of Judicial economy and functional competence of the courts and the integrity of the Judicial System… the court will inevitably consider the extent to which the doctrine advances the underlying principles, the certainty and development of the law particularly the constitution law and public interest.”

18. Back to the factual situation at hand, taking into account principles stated above. There is now a judgment by the trial court. The orders that the Appellant sought set aside by the Appeal have now been overtaken by events. In the circumstances, would sustaining the Appeal be of any effect, even if the appeal eventually succeeds? The Appellant thinks so, by submitting that the appeal is neither moot nor a mere academic exercise.

19. In the Omtatah case (supra) the Court of Appeal upon interrogating the grounds of appeal held that some reliefs could not issue but others could still be capable of consideration, for instance whether or not the learned judge erred in expunging documents tendered in support of the Appellant’s case therein.

20. The Appellant further submits that the appeal challenges the process under which the judgment was arrived at, and thus the entry of the judgment cannot be said to validate the process or render academic the appeal challenging the process.

21. On the other hand, the Respondent submits that even if the appeal is eventually heard and allowed, the resultant decision on the issues would be of no practical value or use; and therefore raises no justifiable issue to proceed to hearing of the appeal.

22. A close scrutiny of the grounds for the appeal relate to the pre-judgment proceedings and by the application sought to arrest what is complained of in the ruling/order of the trial court, candidly stated as being from the ruling of 2/2/2022.

23. The trial court having moved to hear the matter and deliver a judgment, it therefore follows that the orders sought by the appellant pre-judgment are no longer applicable or practical as they have been overtaken by events, the delivery of the judgment.

24. There being a judgment by a court of competent jurisdiction, I am of the considered view that the Appellant cannot adequately and sufficiently mound a good case on the present appeal, save to perhaps file another appeal, against the judgment of the trial court. To do otherwise, and proceed to have the appeal heard would, in my view, be an academic exercise and made to waste precious judicial time. The grounds of appeal post-judgment will no doubt be very different from those stated in the present appeal, but could also include the same.

25. Having stated as above, I hold the view that the appeal hereby has been overtaken by events and caught up with the mootness doctrine as it ceases to present a justifiable dispute by the events (being the judgment), and therefore any resultant decision would be of no practical value or use.

26. Consequently, I find that the application dated 1/4/2022 for orders of stay of execution of the trial court’s orders dated 2/2/2022 to have been overtaken by events, and therefore moot, for all purposes and intent.

27. I further find that the application dated 19/4/2022 to be merited. The upshot is that the Appeal is dismissed.Each party shall bear own costs on their respective applications, and the appeal.

DELIVERED DATED AND SIGNED AT NAIROBI THIS 7TH DAY OF JULY 2022. J. MULWAJUDGE.