[2022] KEHC 15057 (KLR)

Nyingi v Njoroge (Civil Appeal 168 of 2020) [2022] KEHC 15057 (KLR) (Civ) (4 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15057 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 168 of 2020

CW Meoli, J

November 4, 2022

Between

Phylis Nyambura Nyingi

Applicant

and

Margaret Wambui Njoroge

Respondent

Ruling

1. By her motion dated May 20, 2020 Phylis Nyambura Nyingi (hereafter the Applicant) seeks to stay execution of the judgment in Nairobi Milimani CMCC No. 2142 of 2013 pending the hearing and determination of the appeal herein. The motion is expressed to be brought under Order 42 Rule 6 of the Civil Procedure Rules (CPR), inter alia, on grounds on the face of the motion as amplified in the supporting affidavit sworn by Applicant.

2. To the effect that being aggrieved and dissatisfied with the whole judgment of the lower court delivered on April 20, 2021 the applicant has preferred this appeal and is apprehensive that the decree holder, Margaret Wambui Njoroge (hereafter the Respondent) may proceed with execution and thereby render her otherwise meritorious appeal nugatory exposing her to irreparable loss.

3. The Respondent opposes the motion by way of a replying affidavit. She swears that the Applicant has not demonstrated substantial loss and as such there is no justifiable reason to deny her the fruits of successful litigation. That her residence is known to the Applicant, and she is a person of means well capable of refunding the decretal sum in the unlikely event the appeal succeeds. In conclusion she contends that the motion lacks merit and ought to be dismissed with costs.

4. In a rejoinder by way further affidavit the Applicant contends that the Respondent has not demonstrated her source of income and that the Applicant is apprehensive that if execution is not stayed the Respondent will not be in a position to refund the decretal sum on successful appeal and that the Respondent will not suffer any prejudice if execution is stayed. That any incidental prejudice to the Respondent can be compensated by an award of costs.

5. The motion was canvassed by way of written submissions. Counsel for the Applicant anchored his submissions on the provisions of Order 42 Rule 6 of the Civil Procedure Rules regarding the principles governing the grant of stay of execution pending appeal. Submitting on substantial loss, counsel called to aid the decisions in Butt v Rent Restriction Tribunal (1982) KLR 417, Housing Finance Company of Kenya v Sharok Kher Mohamed Ali Hirji & Another [2015] eKLR and Mukuma v Abuoga (1988) KLR 645 to contend that the Applicant will be greatly prejudiced if the decretal amount is released to the Respondent as recovery may be difficult since the Respondent in her own affidavit material indicated that she is retired and has not disclosed any formal source of income. Counsel further took issue with the properties cited in the Respondent’s affidavit material and asserted that the Respondent was not the sole proprietor of the properties and therefore the same could not be available in recovery of the decretal sum.

6. Finally, counsel submitted that the Applicant has demonstrated that the appeal is arguable and asserted that in the event the appeal is dismissed the decretal sum will be settled inclusive of accrued interest.

7. The Respondent equally anchored her submissions on the provision of Order 42 Rule 6 of the Civil Procedure Rules and the decision in Elena D. Korir v Kenyatta University [2014] eKLR on the principles undergirding the grant of stay of execution pending appeal. Counsel contended that the motion is unmerited as it seeks to deny or delay the Respondent’s right to enjoy the fruits of her judgment. In response to the Applicant’s submissions on substantial loss, counsel called to aid the decisions in Antoine Ndiaye v African Virtual University [2015] eKLR and Kenya Shell Limited v Kibiru & Another [1986] eKLR to argue that the burden of proof rests with the Applicant to demonstrate the Respondent’s inability to refund the decretal sum if paid out. That the Applicant has tendered no cogent evidence in that regard while the Respondent has demonstrated through her affidavit material that she is a person of means and capable of refunding the decretal sum to the Applicant should the appeal succeed. Concerning security, counsel cited the decision in Equity Bank Limited v Taiga Adams Company Limited [2006]eKLR to assert that the Applicant has not provided security nor indicated willingness to abide by any condition on as may be imposed by the court. The court was therefore urged to dismiss the motion.

8. The court has considered the material canvassed in respect of the motion. It is trite that the power of the court to grant stay of execution of a decree pending appeal under Order 42 Rule 6 of the Civil Procedure Rules (CPR) is discretionary, and the discretion should be exercised judiciously. The Court of Appeal in Butt v Rent Restriction Tribunal [1982] KLR 417 held that:-“1. The power of the court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.

2. 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 that appeal court reverse the judge’s discretion.

3. 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.

4. The court in exercising its discretion whether to grant [or] refuse an application for stay will consider the special circumstances of the case and unique requirements. The special circumstances in this case were that there was a large amount of rent in dispute and the appellant had an undoubted right of appeal.

5. The court in exercising its powers under Order XLI rule 4(2)(b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security for costs as ordered will cause the order for stay of execution to lapse.”

9. The motion herein is premised on the provision of Order 42 Rule 6(1)&(2) of the Civil Procedure Rules (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”.

10. Having reviewed the record and the material canvassed by the parties, the Court finds that the motion turns on a jurisdictional issue that has not been addressed by the parties. The court has noted that the Applicant commenced this appeal by filing what are entitled as “Draft Memorandum of Appeal” and “Notice of Appeal” both dated May 20, 2020. Meanwhile, counsel for the Applicant in his submissions has equally referred to the filing of a “Draft Memorandum of Appeal” to contend that the grounds therein are arguable.

11. It is evident on a plain reading of Order 42 Rule 6(1) of the CPR that an order to stay execution pending appeal presupposes the existence of a competent appeal. The filing of an appeal is a condition precedent to the exercise of this court’s appellate jurisdiction under Order 42 Rule 6 (1) of the Civil Procedure Rules. Although the provision does not expressly say so, this can be inferred from the rule. Further, an analogy can be drawn from Order 42 Rule 6 (4) of the Civil Procedure Rules which states that an appeal is deemed filed in the Court of Appeal when the notice of appeal has been given. Equally, Order 42 Rule 6 (6) of the Civil Procedure Rules states:“Notwithstanding anything contained in subrule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.” (Emphasis added).

12. It would seem therefore that the invocation of the jurisdiction of this court under Order 42 Rule 6 (1) or 6 (6) of the Civil Procedure Rules must be preceded by the filing of an appeal, or compliance with the procedure for filing an appeal, in this case a memorandum of appeal (See Order 42 Rule 1 of the Civil Procedure Rules). Until the memorandum of appeal is filed, the court may be acting in vacuo by considering the Applicant’s prayer for stay of execution pending a non-existent appeal. The Court of Appeal in Abubaker Mohamed Al-Amin v Firdaus Siwa Somo [2018] eKLR while citing with approval the decision of the High Court in Rosalindi Wanjiku Macharia vs. James Kiingati Kimani (Suing as the Legal Representative of the Estate of Martin Muiruri (Deceased)) [2017] eKLR concurred and adopted the foregoing reasoning.

13. Earlier, the Court of Appeal in the case of Equity Bank-vs- Westlink MBO Limited[2013] eKLR while commenting on Rule 5 (2) (b) of the Court of Appeal Rules, whose wording is substantially similar to Order 42 Rule 6 (1) of the Civil Procedure Rules, and on Order 42 Rule 6 (6) of Civil Procedure Rules, left no room for doubt that an application for stay of execution pending appeal could only be entertained before it after the filing of an appeal or a Notice of Intended Appeal. (See also Balozi Housing Co-operative Society Limited -Vs- Captain Francis E. K. Hinga [2012] eKLR). Order 42 Rule 1;“(1)Every appeal to the High Court shall be in the form of a memorandum of appeal signed in the same manner as a pleading.(2)The memorandum of appeal shall set forth concisely and under distinct heads the grounds of objection to the decree or order appealed against, without any argument or narrative, and such grounds shall be numbered consecutively.”

14. There is no provision in the Civil Procedure Rules allowing for the institution of an appeal in the High Court from a decision of the subordinate court by the filing of a notice of appeal. An appeal may be commenced in the Court of Appeal by way of a notice of appeal, however. Order 42 Rule 1 of the CPR provides that an appeal to the High Court shall be in the form of a memorandum of appeal. Here, the Applicant has presented a “Draft Memorandum of Appeal” suggesting that the actual appeal is yet to be filed, which would mean that there would be no basis upon which this court can exercise its appellate jurisdiction under the provision invoked.

15. The filing of the “Draft Memorandum Appeal” does not appear to be inadvertent or a typo-graphical error as counsel for the Applicant in his submission reiterated the fact that the appeal was arguable, referring to the grounds in the “Draft Memorandum Appeal”. Yet, there is no prayer in the motion for the late admission of any intended appeal under Section 79G of the Civil Procedure Act. It is therefore not clear to the court why the Applicant filed a “Draft Memorandum Appeal” while simultaneously seeking to invoke the court’s jurisdiction under the provisions of Order 42 Rule 6 of the Civil Procedure Rules. In sum, there is no competent appeal before this court.

16. The erroneous invocation of this court’s appellate jurisdiction is not a mere technicality that is curable under the provisions of Section 3A of the Civil Procedure Act and Article 159(2)(d) of the Constitution. In Peter Nyaga Muvake -v- Joseph Mutunga [2015]eKLR, the Court of Appeal while considering an invalid notice of appeal for want of leave stated inter alia 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.”

17. In the circumstances, the court’s appellate jurisdiction has not been properly invoked and the motion dated May 20, 2020 is hereby struck out with costs to the Respondent. The applicant is directed to regularize and remedy the situation by filing appropriate pleadings within 14 days of this date, failing which the purported appeal will stand automatically struck out.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 4TH DAY OF NOVEMBER 2022. C.MEOLIJUDGEIn the presence of:For the Applicant: Ms.Kituyi h/b for Mr. BosekFor the Respondent: N/AC/A: Carol