[2022] KEHC 11842 (KLR)

Odiyo t/a East Africa Limited v Marimbah & another (Civil Appeal E090 of 2021) [2022] KEHC 11842 (KLR) (12 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11842 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal E090 of 2021

MW Muigai, J

May 12, 2022

Between

Moses Martin Okelo Odiyo t/a East Africa Limited

Applicant

and

Joshua Rodney Marimbah

1st Respondent

Elizabeth Mutuku

2nd Respondent

Ruling

1. The applicant filed notice of motion application dated June 17, 2021 under article 40 of the Constitution, section 3 and 3A of the Civil Procedure Act and order 10 rule 11, order 22 rule 22, order 42 rule 6(1), order 51 rule 1 of the Civil Procedure Rules, 2010, and sought the following orders;a.Spentb.That this hon court grants leave to appeal against the ruling and orders of the trial court issued on June 16, 2021. c.Spentd.That this hon court grants a stay of the ruling delivered on June 16, 2021 and the subsequent orders of the trial court pending the hearing and determination of the appeale.Spentf.That costs of this application be provided for.

2. The application is supported by Moses Martin Okelo Odiyo deposed that the caterpillar in question is caterpillar 320BL chassis number 7JR00405 and not caterpillar 3200L chassis number 7R00405. Further, that the trial court lacked jurisdiction to interfere with caterpillar 320BL chassis number 7JR0040 is company property and was taken to the director’s premises by consent. It has not been able to work and has been undergoing repairs and the interim orders of stay have interrupted the repairs and future ground operations.

3. He deposed that the trial court failed to appreciate that the threshold for a mandatory injunction had not been met. He contended that he has invested in the purchase and repairs of the caterpillar and furthermore, that they failed to appreciate that the caterpillar had been undergoing repairs shouldered by the applicant and the orders interfered with this as well as prejudiced one director against another.

4. He deposed that he had filed an appeal and if stay was not granted, he would suffer irreparable damage as he was heavily invested in the caterpillar and the only way to recoup is by it working. He deposed that the application had been filed without unreasonable delay. In addition, the ruling amounted to prematurely determining the case in favor of the respondent.

5. The 1st respondent did not file a response to the application but filed submissions.

6. The applicant filed a further affidavit on July 27, 2021 in which he reiterated the contents of his supporting affidavit and stated that the repairs stopped pursuant to theex parte orders of December 6, 2019 and that since the caterpillar was imported, it was only used for 60 hours, most of which time was used testing while undergoing repairs, information he opines was availed to the trial court.

7. He stated that the 1st respondent was being dishonest as he knew where the caterpillar was and even consented and participated in its delivery to the 2nd respondent premises. He said that he stands to suffer substantial loss as he invested Kshs 3,786,411 in respect of the purchase and Kshs 452,735. 24 in repairs totaling to Kshs 4,239,146. 24 which is more than was invested by the 1st respondent. He deposed that he would not sell the caterpillar during the pendency of the proceedings and since the plaint and the orders are not of monetary nature then security may not be applicable.

Applicant’s Submissions 8. The applicant filed submissions dated July 27, 2021 in which he submitted that he had satisfied the grounds under order 42 rule 6 CPR and while reiterating the contents of his affidavit he stated that he will suffer substantial loss as he stands to lose his investment, the 1st respondent’s source of income is unknown and so is his ability to cater for the repairs required resulting from the wear and tear of long storage thus his ability to refund the amounts is also unknown. Further, he has solely taken care of the repairs and the 1st respondent is not willing to undertake and spend resources on the same. He also opined that the onus was on the 1st respondent to prove he could refund all the monies. Reliance was placed on the case of Amal Hauliers Limited v AbdulNasir Abukar Hassan [2017] eKLR which espouses on the issue of appeals and stay pending appeal.

9. Since it was not a monetary in nature according to the applicant, security was not necessary and the court should use its discretion to give conditions that he is willing to abide by. He relied on the case of Anita Kaari Njeru vs Stella Kaburu (suing as the legal representative of the late Alfred Murithi Rufus [2021] eKLR. He further submitted that the intended appeal was arguable and would be rendered nugatory if the orders of stay of execution were not granted.

10. The 1st respondent submitted on three grounds. The first issue was whether the applicant had satisfied the grounds of appeal out pf time, while relying on section 65 (2) and 79G of the Civil Procedure Act, article 25 of the Constitution of Kenya as well as the case of Branco Arabe Espanol v Bank of Uganda [1999] 2 EA, he submitted that he is not opposed to the applicant being allowed to file the appeal out of time.

11. On the issue of stay pending appeal, he relied on order 42 rule 6 of the Civil Procedure Rules 2010 and the case of Vishram Ravji Halai vs Thornton & Turpin [1990] KLR 365, he submitted that the applicant had not shown the substantial loss he will suffer and only faults the court for the decision it made. He does not say how taking the machine to Athi River Police station would adversely affect him and since it is not in use, he sees there being no danger taking the machine to a place where both parties cannot interfere with it. He further submitted that since the applicant has admitted that the respondent also invested resources in the purchase of the machine then the injunctive orders are meant to secure the subject matter of the dispute until the dispute is resolved. He urged the court to dismiss the application with costs.

Analysis and Determination 12. I have considered the notice of motion application, the responses thereto and submissions of the parties and find that the issue for determination is whether the applicant is entitled to stay of execution pending the appeal. I note that the respondent does not object to leave to file the appeal. The right to appeal is a right provided for under article 50 of the Constitution of Kenya and the applicant is well within his right.

13. I have considered the orders being sought to be stayed. The trial court orders were that;a.This suit is not to be filed as a derivative suit and as such application dated January 24, 2020 is dismissed.b.An order is hereby issued compelling the 1st and 2nd defendant by themselves, their officers, employees, agents, servants and/or proxies to transfer/move the machine known as caterpillar 3200L chassis number 7R00405 to Athi River Police station for safe custody till this matter is heard and finalized at the 1st defendant’s own costs.c.An order of temporary injunction is issued to the 1st and 2nd defendant from disposing, alienating, selling and or handover to the plaintiff machine known as caterpillar 3200L chassis number chassis number 7R00405 pending the hearing and final determination of the suit.d.That OCS Kikima and OCS Athi River Police station to enforce the orders.

14. The order from the trial court in its orders, the ruling refers to caterpillar 3200L chassis number 7R00405 as the subject matter while in this application, the applicant has noted that the subject matter is caterpillar 320BL chassis number 7JR00405 and not caterpillar 3200L chassis number 7R00405 in his supporting affidavit but goes on to submit on caterpillar 320BL chassis number 7JR00405. The respondent refers to “the machine” but does not expressly mention the type of machine nor the chassis number save for refereeing to the trial court order.section 99CPA provides;Amendment of judgments, decrees or orders clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the court either of its own motion or on the application of any of the parties.section100 CPA provides;General power to amendThe court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceeding

15. The fact of the trial court’s ruling of June 16, 2021 referring to caterpillar 3200L chassis number 7R00405 instead of caterpillar 320BL chassis number 7JR00405 is a typographical error anticipated by the law as provided by section 99 & 100 CPA and is not fatal to the subject-matter of litigation.

Appeal Out of Time 16. With regard to the prayers sought seeking that this court grants leave to appeal against the ruling and orders of the trial court issued on June 16, 2021and grants stay of execution of the orders issued in the ruling of June 16, 2021.

17. By virtue of sections 65 75 & 79 G of Civil Procedure Act, the appellant reserves the right of appeal in specific instances and ought to file an appeal within 30 days of the judgment, ruling, decree or orders of the trial court.section 79G of the act provides; time for filing appeals from subordinate courts;Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order:Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.

18. The fact of an appeal being brought within the requisite timelines was further emphasized by Hon Justice G V Odunga in the case of Velji Shamad v Shamji Bros and Popatlal Karman & Co [1957] EA 438 in reference to Diplack Kenya Limited v William Muthama Kitonyi [2018] eKLR which is stated as hereunder:“In the interests of the public the court ought to take care that appeals are brought before it in proper time and before the proper court or registry and when a judgment has been pronounced and the time for appeal has elapsed without an appeal the successful party has a vested right to the judgment which ought, except under very special circumstances, to be made effectual and the legislature intended that appeals from judgments should be brought within the prescribed time and no extensions of time should be granted except under very special circumstances.”

Unreasonable Delay 19. The ruling of June 16, 2021 is almost a year since the orders were granted, the applicant has not explained circumstances, reasons or situation for the court to consider and confirm as sufficient cause or special circumstances that hindered filing of the appeal on time.I note that the respondent did not object to the filing of the appeal but to the stay of execution of the orders of the ruling of the trial court of June 16, 2021.

Arguable Appeal 20. As to what constitutes an arguable appeal, the Court of Appeal in Nairobi Women’s Hospital v Purity Kemunto [2018] eKLR stated:-“To say that an appeal is arguable is another way of saying that it is not frivolous and that it raises a bona fide issue deserving full consideration by the court. Even one bona fide issue will satisfy the requirement, for the law does not look for a multiplicity of arguable issues.”

21. The ruling of June 16, 2021 by the trial court was based on applications by the plaintiff seeking injunction and contempt of court and defendant’s application to set aside injunction granted. The ruling was a culmination of interpartes interim orders to preserve the subject-matter pending hearing and determination of the suit.

22. There are various contested and competing issues for determination at trial by the trial court most conspicuous is ownership of the excavator caterpillar 320BL chassis number 7JR00405 by loch company of plaintiff and 1st defendant and at the same time the excavator released to the 2nd defendant by the 1st defendant vide another company CLS East Africa Ltd. The issue of contention is moving the excavator to Athi River Police Station and 1st & 2nd defendant to incur costs. That is an arguable issue.

Substantial Loss 23. In Tropical Commodities Suppliers Ltd and others v International Credit Bank Limited (in liquidation) (2004) EA LR 331, defined substantial loss in the sense of order 42 rule 6 CPRas follows: -“…Substantial loss does not represent any particular mathematical formula. Rather, it is a qualitative concept. It refers to any loss, great or small, that is of real worth or value as distinguished from a loss without value or a loss that is merely nominal…”

24. The appellant deposed that at the center of the dispute is an excavator caterpillar 320BL chassis number 7JR00405 that belongs to the company Loch Construction Co Ltd whose directors and shareholders are the plaintiff/respondent and 1st defendant/appellant respectively. Both directors contributed to the purchase importation and repair of the excavator. The excavator was housed at the plaintiff’s compound in Syokimau. Later by consent due to lack of business opportunities in Konza they moved the excavator to Tawa in Makueni. The appellant deposed that they have incurred costs to ferry the excavator and repair it and to comply with the ruling of June 16, 2021 specifically to transport the excavator at his own cost to Athi River for safe custody is to incur irreparable loss. The excavator is not operational, the respondent has incurred financial loss due to repair cost and in the circumstances expected to incur more loss by transporting the excavator by using a crane to the police station notwithstanding the wear and tear that maybe sustained in transporting the excavator.

25. The respondent submitted that the appeal was not yet heard and the issue is of filing the appeal and compliance with requirements for stay of execution under order 42 rule 6 CPR2010.

26. This court finds that the applicant has made out a case for substantial loss, as in a nutshell he is going to incur financial loss in transportation costs and possibly further damage on the excavator which will not be refunded.

Security 27. The Court in Focin Motorcycle Co Limited v Ann Wambui Wangui & another [2018] eKLR, stated: -“Where the applicant proposes to provide security as the applicant has done, it is a mark of good faith that the application for stay is not just meant to deny the respondent the fruits of judgment. My view is that it is sufficient for the applicant to state that he is ready to provide security or to propose the kind of security but it is the discretion of the court to determine the security. The applicant has offered to provide security and has therefore satisfied this ground for stay.”

28. What is at stake is the excavator caterpillar 320BL chassis number 7JR00405 and where, how and by whom it should transported to Athi River Police Station. This is not a monetary or liquidated issue for execution. Therefore for the court to determine whether sufficient security is the value of the excavator which is not disclosed, or the amount owed to the appellant which is only pleaded and contested to be determined at the full-hearing of the suit before the trial court. For this reason, the security shall be the logbook of the excavator to be deposited with the Deputy Registrar Machakos High Court and duly signed for by the bearer or owners within 30 days.

Stay of Execution 29. In Tabro Transporters Ltd v Absalom Dova Lumbasi [2012] eKLR, the court held that:“The discretionary relief of stay of execution pending appeal is designed on the basis that no one would be worse off by virtue of an order of the court; as such order does not introduce any disadvantage, but administers the justice that the case deserves. This is in recognition that both parties have rights; the appellant to his appeal which includes the prospects that the appeal will not be rendered nugatory; and the decree holder to the decree which includes full benefits under the decree. The court in balancing the two competing rights focuses on their reconciliation which is not a question of discrimination.”

Disposition1. This court grants leave to file appeal out of time within 30 days from delivery of the ruling on condition;2. The registered owners of excavator caterpillar 320BL chassis number 7JR00405 to deposit log book with Deputy Registrar Machakos High Court for safe custody as security within 30 days and sign for the same.3. Stay of execution of the ruling of June 16, 2021 granted in compliance of the above stated conditions.4. Each party to bear its own costs.

DELIVERED SIGNED & DATED IN OPEN COURT IN MACHAKOS ON 12TH MAY 2022. (VIRTUAL CONFERENCE)M.W. MUIGAIJUDGE