[2024] KEHC 16318 (KLR)

Ng’ang’a & another v Excellent Logistincs Ltd (Civil Suit 394 of 2013) [2024] KEHC 16318 (KLR) (Civ) (16 December 2024) (Ruling)

Neutral citation: [2024] KEHC 16318 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Suit 394 of 2013

CW Meoli, J

December 16, 2024

Between

Joyce Wairimu Ng’Ang’A

1st Plaintiff

Samuel Maina Mukundi

2nd Plaintiff

and

Excellent Logistincs Ltd

Defendant

Ruling

1. For determination are the motions dated 15. 07. 2024 filed by Excellent Logistics Ltd, the defendant (hereafter the Applicant) and the motion dated 21. 11. 2024 filed by Joyce Wairimu Ng’ang’a and Samuel Maina Mukundi, the 1st and 2nd Defendant/Defendants (hereafter the 1st and 2nd Respondent/Respondents). For ease of reference the Court will hereafter refer to them as the Defendant’s and Plaintiffs’ motions, respectively. The Defendant’s motion primarily seeks that Court be pleased to stay the judgment dated 02. 04. 2024 and all subsequent orders and proceedings pending hearing and determination of the intended appeal ostensibly to the Court of Appeal. The motion is expressed to be brought pursuant to Section 3 & 3A of the Civil Procedure Act (CPA) and Order 42 Rule 6 of the Civil Procedure Rules (CPR), on grounds on the face of the motion, as amplified in the supporting affidavit sworn by Fredrick Ndung’u Ngugi, who describes himself as a director of the Defendant, and duly authorized to depose.

2. The gist of his affidavit is that, judgment in the matter was delivered on 02. 04. 2024, in favour of the 1st Plaintiff in the sum of Kshs. 20,472,100/- and the 2nd Plaintiff to the tune of Kshs. 1,564,177/-, totaling Kshs. 22,036,277/- with costs of the suit and interest, until payment in full. That the Defendant has since filed before the Court of Appeal, Civil Application No. E321 of 2024 seeking leave to file a Notice of Appeal, Memorandum of Appeal and Record of Appeal out of time, and that directions on the motion were issued on 08. 07. 2024. That as the Court of Appeal is seized of the matter, this Court ought to allow the present motion to preserve the proceedings before the superior Court. Additionally, that the Defendant has an arguable appeal which has a high chance of success therefore this Court ought to exercise its discretion to grant the motion, in facilitating the Defendant’s exercise of its right of appeal. He further deposes that the Applicant will be unduly prejudiced beyond monetary compensation if the motion is not granted, and that the Defendant has approached the Court within reasonable time.

3. The Plaintiffs oppose the motion by way of a grounds of opposition dated 05. 10. 2024 and a joint replying affidavit of even date. They begin by attacking the motion by deposing that no authority has been disclosed to the Court to confirm that the said deponent is duly authorized to depose. That the Court twice granted the Defendant interim orders which he has failed to comply with and is equally forum shopping. They go on to depose that Court ought to balance the rights of the respective parties and not impede their enjoyment of the fruits of successful litigation. More so as no reasons have been offered by the Applicant for failing to comply with the earlier Court orders. That it is not enough for the Applicant to assert substantial loss without proof. The Plaintiffs view the Defendant’s motion as an afterthought and state that no security for due performance of the decree, has been offered. In conclusion, they depose that the Court ought not to assist the Applicant to delay execution of the decree through a vexatious and frivolous appeal in the absence of compliance with this Court’s orders on security.

4. In rejoinder by way of a supplementary affidavit, the Defendant attacks the Plaintiffs’ joint affidavit for not being drawn in first person in violation of Order 19 Rule 5 of the CPR. He goes on to depose that the grounds of opposition are an abuse of the Court process as they contain factual issues rather than matters of law. He further reiterates that the motion was filed without delay and that the Applicant stands to suffer prejudice if the motion is not allowed.

5. On grounds that if execution were to proceed against the Applicant it would create a state of affairs that will irreparably affect or negate the core of the Applicant; it would affect the financial position of the Applicant; and that the Respondents capacity to refund the decretal sum in the event of a success appeal, is in doubt. In conclusion he states that the Applicant is ready and willing to furnish security or comply with any condition as may be imposed by the Court.

6. On 31. 10. 2024, this Court issued directions on disposal of the Defendant’s motion, on the basis of the parties’ respective affidavit material on record.

7. The Plaintiffs thereafter proceeded to file their own motion on 21. 11. 2024 seeking inter alia leave to file a further replying affidavit to the supplementary affidavit sworn on behalf of the Applicant; and that the said further replying affidavit be deemed as duly filed in the interest of justice, time and circumstance of the case. The Plaintiffs’ motion is expressed to be brought pursuant to Section 1A, 1B & 3A of the Civil Procedure Act (CPA), Order 19 Rule 7 and Order 51 Rule 10(2) & 14(3) of the Civil Procedure Rules (CPR), on grounds on the face of the motion, as amplified in the supporting affidavit sworn by the 1st Respondent.

8. The kernel of the supporting affidavit is that the Defendant’s supplementary affidavit introduces new matters, and it is necessary that a further replying affidavit is filed to address the new issues raised. That the purpose of the intended further replying affidavit is to ensure that the Court has a complete picture of the matter and will only be limited to addressing the new issues raised in the Applicant’s supplementary affidavit. In summation, she deposes that the Applicant will not be prejudiced if the motion is allowed whereas this Court has discretion to grant the leave sought in the interest of justice in view of the impeding ruling.

9. On 21. 11. 2024, this Court considered the Plaintiffs’’ motion having filed under certificate of urgency and issued exparte directions as follows: -“The motion dated 21. 11. 2024 considered. Each party to file a single-page submission in font size 12 thereon, for determination of the motion alongside the main motion dated 15. 07. 2024 by ruling schedule for 11. 12. 2024. Submissions to be simultaneously filed by COB on 30. 11. 2024. The motion dated 21. 11. 2024 and this order to be served upon the Applicant by COB on 23. 11. 2024” (sic)

10. Despite the clear directions above, and earlier directions on the initial motion by the Defendant, the parties proceeded to file submissions regarding the earlier motion, and in respect of the Plaintiffs, both motions.

11. On the part of the Defendant, counsel submitted that in an application for stay pending appeal the Court is faced with a situation where judgement has been given and is concerned with preserving the rights of both parties pending that appeal. While calling to aid the provisions of Order 42 Rule 6(2) of the CPR, counsel argued concerning substantial loss that if stay is denied there is a likelihood that the Applicant shall suffer substantial loss in that the appeal will be rendered nugatory and there are high chances of the decree being executed. On delay, it was argued that the impugned judgment was delivered on 02. 04. 2024 while the stay motion was filed on 15. 07. 2024, hence the delay was not inordinate. Counsel submitted that the Applicant is willing to abide by any conditions on security, as may be set by the Court.

12. The Plaintiffs asserted the fundamental principle that a successful party is prima facie entitled to enjoy the fruits of their judgement. In urging the Court to dismiss the Defendant’s stay motion it was submitted that it fails the conditions spelt out in Order 42 Rule 6(2) of the CPR. It was further contended that on two (2) separate occasions the Applicant was granted conditional stay by this Court but failed to provide security whereas there was presently no appeal pending in respect of the impugned decision. It was further contended that the success of an alleged appeal when presented as a ground for stay of execution amounts to this Court sitting on appeal on its own decision, contrary to the provisions of Order 42 Rule 6(2) of the CPR. Counsel further submitted that allegations of lack of financial capacity by the Plaintiffs are unsubstantiated; and that they have the ability to refund the decretal sum the intended appeal (if any) is successful. Addressing the Plaintiffs’ latest motion, counsel summarily submitted that a response to the further issues raised in the Defendant’s supplementary affidavit was necessary for the Court to obtain a complete picture of the case and in the interests of justice.

13. The Court has considered the material canvassed in respect of the motions. Out of prudence the Court purposes to first address the Plaintiffs’ latest motion dated 21. 11,2024 given the reliefs sought therein. Relevant to the said application are the provisions of Section 3A of the CPA and Order 51 Rule 14(3) of the CPR as cited by the Respondents. The latter provision provides that …..(3) Any applicant upon whom a replying affidavit or statement of grounds of opposition has been served under sub rule (1) may, with the leave of the court, file a supplementary affidavit whereas the former reserves the inherent power of the Court to make such orders as may be necessary for ends of justice or to prevent abuse of the process of the Court. Ideally, the motion is properly predicated on Section 3A of the CPA, given that the Plaintiffs essentially seek leave to the file a further response to the Defendant’s supplementary affidavit on grounds that the latter raised new issues that call for a response. The purport of Section 3A as addressed by Court of Appeal in Rose Njoki King’au & Another v Shaba Trustees Limited & Another [2018] eKLR.

14. The purpose served by affidavit material in Court proceedings is the tendering of evidentiary material prepared under oath. Order 51 Rule 14(1) of the CPR provides for the manner by which a respondent may oppose any application before a Court, Sub-Rule (3) of Rule 14 providing for the applicant’s right of rejoinder, but with leave of the Court. However, Order 51 Rule 14 does not contemplate a respondent filing a further response to the Applicant’s rejoinder but in exceptional cases, Court’s in our jurisdiction have accorded respondent(s) leave to file further additional evidence or affidavit material, for specified reasons.

15. Regarding the applicable principles in an application to file additional evidence, the Supreme Court in the case of Raila Odinga & 5 others v IEBC & 3 other [2013] eKLR stated: -[T]he parties have a duty to ensure they comply with their respective time lines, and the Court must adhere to its own. There must be a fair and level playing field so that no party or the Court loses the time that he/she/it is entitled to, and no extra burden should be imposed on any party or the Court as a result of omissions or characteristics which were foreseeable or could have been avoided. The other issue the Court must consider when exercising its discretion to allow a further affidavit is the nature, context of the new material intended to be provided and relied upon. If it is small or limited so that the other party is able to respond to it, then the Court ought to be considerate, taking into account all aspects of the matter. However, if the new material is so substantial involving not only a further affidavit but massive additional evidence, so as to make it difficult or impossible for the other party to respond effectively, the Court must act with abundant caution and care in the exercise of its discretion to grant leave for the filing of further affidavits and or admissions of additional evidence.”

16. The above principles can be applied mutatis mutandis in an application for additional affidavit evidence. Additionally, an application such as presented by the Plaintiffs, is predicated on discretion of the Court. As held in Wadhwa (As Legal Representative of the Estate of Deshpal Omprakash Wadhwa) v Mohamed & 4 others (Civil Appeal 33 & 148 of 2019 (Consolidated)) [2022] KECA 25 (KLR) while citing with approval the decision of Kasango, J. in the case of Samuel Kiti Lewa Vs Housing Finance Co. Of Kenya Ltd [2015] eKLR and Mutungi, J. in Odoyo Osodo v Rael Obara Ojuok & 4 others [2017] eKLR. Here the applications were for reopening of cases and adduction of additional evidence after the close of the trial.

17. Before granting such a motion, the court will inquire into the supporting grounds, the delay (if any) and the reasons for filing additional (affidavit) material. Here, the Plaintiffs stake their plea on the ground that the Defendant’s supplementary affidavit raised new issues and assert the purpose of the further replying affidavit to be providing the complete facts of the matter.

18. Upon juxtaposing the Defendant’s supplementary affidavit against the Plaintiffs’ replying affidavit alongside the intended further replying affidavit (Annexure JWN-1), the Court noted that the supplementary affidavit constituted a response on issues of law appertaining to the competency of the Plaintiffs’ replying affidavit and a rejoinder to the test principles applicable under Order 42 Rule 6 of the CPR. The latter however ordinarily turns on factual matters, in this case the alleged financial position of the Plaintiffs to refund monies paid out to them if the appeal were to succeed. The Defendant did not raise any object to the application in its submissions. In the interest of justice, the court admits the Plaintiffs’ further replying affidavit.

19. Moving on to the Defendant’s motion, the Plaintiffs challenged the competency of the supporting affidavit about which they assert that no authority has been disclosed to the effect that the said deponent is duly authorized to depose. Here, it is undisputed that the Applicant is a corporation, based on the description in the pleadings before this Court. Order 4 Rule 1(4) as read with Order 9 Rule 2 of the CPR require that a person acting or deposing any affidavit on behalf of a body corporate should demonstrate that he is duly authorized to so act on behalf of the body corporate. See Court of Appeal decision in Kenya Trypanosomiasis Research Institute v Anthony Kabimba Gusinjilu [2019] eKLR. That said, the Applicant’s affidavit material at paragraph 1 thereof states that “I am a male adult of sound mind and a director of the Applicant’s company duly authorized to swear this affidavit on my own behalf and on behalf of the Applicant herein”

20. While it is true as held in Makupa Transit Shade Limited & Another v Kenya Ports Authority & Another [2015] eKLR as cited with approval in Kenya Trypanosomiasis Research Institute (supra) that the provisions of Order 4 Rule 1(4) and Order 9 Rule 2 of the CPR are not intended to be utilized as a procedural technicality to strike out suits or pleadings, particularly where no evidence was produced to demonstrate that the officer was unauthorized, it is imperative for the deponent to an affidavit sworn on behalf of a corporation to state that they were duly authorized to depose. Nevertheless, as settled by the Court of Appeal in Arthi Highway Developers Limited v West End Butchery Limited & 6 others [2015] eKLR, upon the deposition by Fredrick Ndung’u Ngugi on oath, regarding his capacity and authority to depose, the evidentiary burden shifted on the Plaintiffs to tender evidence to the contrary. The Plaintiffs having failed to pick up the gauntlet, their objection must fail.

21. Addressing the substratum of the Defendant’s motion, it must be stated that at this stage the Court is not concerned with the merits of the appeal at this stage. That would be a consideration before the Court of Appeal in an application brought under Rule 5(2)(b) of the Court of Appeal Rules. That said, the power of this Court to grant stay of execution of a decree pending appeal is discretionary, but the discretion should be exercised judicially. See Butt v Rent Restriction Tribunal [1982] KLR 417. The Defendants’ prayer for stay of execution pending appeal, is brought specifically pursuant to Order 42 Rule 6 of the CPR which provides that: -“(1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of 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 order set aside.(2)No order for stay of execution shall be made under subrule (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”.

22. Evidently, Order 42 Rule 6 of CPR, contemplates an application for stay of execution pending appeal being entertained after the filing of an appeal or a Notice of Appeal. See the Court of Appeal decisions in Abubaker Mohamed Al-Amin v Firdaus Siwa Somo [2018] eKLR and Equity Bank -Vs- Westlink MBO Limited [2013] eKLR. A perusal of the physical record and Case Tracking System (CTS) reveals that the Defendant is yet to lodge a Notice of Appeal before this Court despite a purported copy being exhibited as annexure FNN3 in the motion. However, it seems that the Applicant is presently seeking leave to file a notice of appeal out of time before the Court of Appeal. See annexure FNN3. The leave to appeal out of time is yet to be granted by the Court of Appeal, and it is not clear why the Defendant did not combine the prayer for stay of execution with its prayer for leave to appeal out of time in its motion before the Court of Appeal.

23. Until leave is granted, and the Notice of appeal properly filed there, is no appeal subsisting before the Court of appeal upon which a stay order can be predicated. The Court of Appeal held in Peter Nyaga Muvake -v- Joseph Mutunga [2015] eKLR, Civil Appeal No. (Nairobi) 86 of 2015 where a notice to appeal had been lodged without leave that:“Without leave of the High Court, the Appellant was not entitled to give Notice of Appeal where, as in this case, leave to appeal is necessary by dint of Section 75 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules; the procurement of leave to appeal is sine qua non to the lodging of the Notice of Appeal. Without leave, there can be no valid Notice of Appeal. And without a valid Notice of Appeal, the jurisdiction of this court is not properly invoked. In short, an application for stay in an intended appeal against an order which is appealable only with leave which has not been sought and obtained is dead in the water”.

24. By parity of reasoning, the jurisdiction of this court, is not properly invoked in this instance as the prayer seeking stay is bereft of an anchor, and consequently “is dead in the water”. The motion dated 15. 07. 2024 is hereby dismissed with costs to the Plaintiffs.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 16THDAY OF DECEMBER 2024. C. MEOLIJUDGEIn the presence of:Ms Ameka for PlaintiffN/A for Respondents:C/A: Erick