[2022] KEHC 13831 (KLR)

Nduya Muthama & another v Tea Tot Hotel Limited & another (Civil Appeal E484 of 2021) [2022] KEHC 13831 (KLR) (Civ) (7 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13831 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E484 of 2021

JK Sergon, J

October 7, 2022

Between

Joyce Ndunge Nduya Muthama

1st Appellant

Agnes Kavindu

2nd Appellant

and

Tea Tot Hotel Limited

1st Respondent

Betabase Auctioneers

2nd Respondent

Ruling

1. The appellants/applicants herein have brought the notice of motion dated July 25, 2021 which is supported by the grounds set out on the face of the motion and the facts stated in the affidavit deponed by Agnes Kavindu. The applicants sought for the following orders:i.Spent.ii.Spent.iii.That a stay of execution of the whole judgment issued on July 9, 2021 in Civil Case No 7630 of 2018 be and is hereby issued pending the hearing and determination of the appeal.iv.That warrants of attachment dated January 11, 2022 and are hereby stayedv.Spent.vi.Upon the hearing of this application inter-parties ,this honourable court be pleased to issue an injunction restraining the respondents by themselves ,their agents, servants, and or employees or any person acting on their behest from auctioning, selling, disposing off, alienating,levying execution ,attachment ,sequestration and/or distress against any assets or in any other manner interfering with the properties set out in the proclamation notice dated January 11, 2022 and extended on July 20, 2022. vii.The proclamation notice dated January 11, 2022 be declared illegal, irregular and unlawful.viii.The purported intended execution by the 2nd respondent be declared unlawful and irregular.ix.That costs of this application be provided for.

2. The respondents opposed the motion by filing a replying affidavit sworn on August 17, 2022.

3. When the motion came up for interparties hearing the parties respective advocates chose to rely on the averments made in their respective affidavits.

4. I have considered the grounds laid out on the body of the motion, the facts deponed in the rival affidavits and the brief rival oral arguments.

5. A brief background of the matter as set out by the parties is that sometime back in the year 2016, the 1st applicant explained to the director of the respondent herein to finance a purchase of gemstones for export to the tune of 13 million and on July 2, 2016 they travelled to Voi in the company of the two appellants and met gemstone experts and who confirmed that the gemstones were of good quality.

6. Having been convinced of the viability of the business, the respondent entered into an oral agreement with the appellants and advanced a total of Kenya shillings thirteen million Kshs 13 million) but the appellants failed to deliver on the part of the bargains and this pushed the respondent to move to court to have her money back because the appellants were not delivering the gemstones as promised.

7. That on July 9, 2021, 4 years after the respondent moved court, the court delivered its judgment in favour of the respondents and that none of the appellants have repaid a single cent of the decretal sum.

8. The appellants filed an application dated January 31, 2022 in this court seeking for an order for stay of execution pending the hearing and determination of the instant appeal. The aforesaid order was granted on condition that the Appellant deposits a sum of Kshs 6,000,000/=.

9. The applicants aver that the 1st respondent has already sourced for the services of auctioneers who have a warrant of attachment dated January 11, 2022 and might attach and sell their movable properties.

10. In response, the 1st respondent states that this honourable court gave a conditional order for stay pending appeal and that the appellants failed to meet the conditions set by this honourable court for grant of stay.

11. The 1st respondent further stated that execution is a legal process, especially given that this court already pronounced itself on the conditions required for it to grant stay pending appeal which conditions were not met by the appellants.

12. The respondent avers that the appellants have never had any good faith in any attempt to negotiate with him and that all the items proclaimed were found in possession of the 2nd respondent and no one came forth to claim any rights on the said assets.

13. In the present case, it is clear that the applicant had, on April 1, 2022, obtained orders for stay of execution pending appeal before this court where and further that as a condition for the stay, the applicant was to deposit the sum of Kshs 6,000,000/= in court within 45 days. It is instructive to note that the said orders of the this court have to date not been varied or set aside.

14. This court is therefore at a loss as to why the applicant, on July 25, 2022, filed an application before this court seeking the same orders of stay that had already been issued.

15. The filing of this instant application in the face of the existence of another similar application which has been determined, before the this court over the same subject matter of stay of execution amounts to abuse of the due process of court. As was held in the case of Kenya National Examination Council v Republic Ex-parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR, it has always been a policy of the law to prevent a multiplicity of suits on one issue. A multiplicity of suits between the same parties concerning the same issues is not only a waste of judicial time but is likely to put the courts into disrepute where conflicting decisions are issued in those cases.

16. My finding is that the applicants have not come to this court with clean hands as they are seeking to benefit from orders that had already been given to them before and have not been complied with. In my view the applicants should not have any audience before this court as a result of its failure to comply with the order issued by this court on April 1, 2022 requiring it to deposit the sum of Kshs 6,000,000 within 45 days.

17. In this case, I find that the applicants are guilty of abuse of the court process and they has not approached the Court in good faith. Such conduct cannot be countenanced by this court and the court cannot exercise its discretion in favor of such a party.

18. In the result, it is the finding of this court that the applicants’ application dated July 25, 2022 has no merit. The same is ordered dismissed with costs to the 1st respondent.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 7TH DAY OF OCTOBER, 2022. .............................J. K. SERGONJUDGEIn the presence of:............... for the 1st Appellant................for the 2nd Appellant...............for the 1st Respondent...............for the 2nd Respondent