[2023] KEHC 23172 (KLR)

Omollo v Agricultural Finance Corporation & 2 others (Civil Appeal E041 of 2023) [2023] KEHC 23172 (KLR) (4 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23172 (KLR)

Republic of Kenya

In the High Court at Kisumu

Civil Appeal E041 of 2023

RE Aburili, J

October 4, 2023

Between

Luke Omullo Omollo

Appellant

and

Agricultural Finance Corporation

1st Respondent

Kenya Sugarcane Growers Association (Kesga)

2nd Respondent

Chemelis Sugar Factory Company Limited

3rd Respondent

Ruling

1. This appeal was lodged on 10th March 2023 by the Appellant in person. The Appellant is Luke Omullo Omollo, who was the Plaintiff in the lower court vide Kisumu CMCC No. 454 of 2016.

2. In the said court, he sued the Respondents herein AFC, Kenya Sugar cane Growers Association (KESGA) and Chemelil Sugar Factory Company Limited seeking for:a.A permanent injunction restraining the 1st Defendant from disposing of by way of public auction or in any other way interfering with his property rights in Land Parcel No. Kisumu/Boarder/2389,b.A declaration that the Plaintiff had paid in full the loan of Kshs.169,000 advanced to him by the 1st Defendant together with the chargeable interest thereon.c.General damages for breach of contract and an order for payment of the surplus monies realized from the sale of sugarcane harvested in the 1st phase of the project by the 1st Defendant to the Plaintiff.d.Costs of the suit and any other relief that the court may deem fit and just to grant.

3. From the contents of the application now before this court dated 19th August 2023 filed under certificate of urgency, the suit as described above was dismissed and the Appellant preferred this appeal.

4. He now seeks for stay of execution of the decree in Kisumu CMCC No. 454 of 2016, and in his grounds which echo his supporting affidavit, he reiterates the prayers sought in the lower court adding that it is for the ends of justice to be met that a party be allowed to exhaust all the evidence in line with relevant provisions of the Constitution; that the application has been made without delay; and that he is ready and willing to take expeditious steps to have the appeal filed, heard and determined as soon as possible.

5. The application was heard orally on 20th September 2023. The Respondents did not file any Replying affidavit or grounds of opposition but were allowed to respond orally.

6. The Appellant submitted that the judgment in the lower court was delivered on 16th February 2023 and he filed the appeal on 10th March 2023 and he relied on his affidavit and grounds to seek for stay as stated above.

7. On the part of the Respondent, it was submitted that they were not aware that an appeal had been filed as they had not been served with any memorandum of appeal. That no execution was going on to warrant a stay and that costs had not been assessed. Counsel submitted that the applicant could apply for stay in the lower court which passed the decree and that this application is premature.

8. That he has not demonstrated that he deserves the stay and that he had not even undertaken to furnish security.

9. In a rejoinder, the Applicant submitted that he prayed for a stay so that he can wait for typing of proceedings in the lower court.

Determination 10. I have considered the application for stay of execution of decree of the lower court vide Judgment rendered on 16th February 2023 in the lower court, the grounds which mainly reproduce the prayers sought in the lower court and the supporting affidavit sworn by the applicant Luke Omullo Omollo.

11. I have also considered the oral submissions by both parties. I am conscious of the fact that the applicant is a prose litigant hence he may not have the legal prowess to express himself before this court better but he has nonetheless demonstrated in simple terms what he is seeking before this court.

12. Although no pleadings or judgment were annexed to the application, he summarized for this court in his grounds the prayers which he had sought before the lower court which suit was dismissed and this court has no idea whether the suit was dismissed with costs or not as no decree is annexed.

13. Following the Judgment of 16th February 2023, the Applicant did on 27th February 2023 apply for certified copies of proceedings and judgment. There is no evidence of payment for those proceedings and judgment. He also filed this appeal on 10th March 2023 and this court immediately asked the trial court vide letter of 10th March 2023, to submit to this court the trial court record which is yet to be supplied and a reminder was send on 4th May 2023.

14. Four months after the Judgement, on 15th August 2023, the applicant filed this application for stay of execution of decree of the lower court pending hearing and determination of this appeal.

15. Order 42 Rule 6(2) of the Civil Procedure Rules is clear that an appeal shall not operate as stay and that a party appealing may apply for stay to the court appealed to or to the court appealed from. Therefore, whether the applicant applied for stay in the lower court or not, or whether he applied and the stay was declined, he can still apply for stay in these proceedings.

16. Nonetheless, there are conditions that the application for stay must meet before this court can grant stay pending appeal.

17. Before I get to those conditions for stay, I observe that what the Applicant sought in the lower court was an injunction and a declaration together with general damages for breach of contract.

18. If those prayers were dismissed on account that the Applicant herein did not prove his case on a balance of probabilities, then the orders of dismissal give rise to a negative decree and therefore the only thing that can be stayed is execution process for recovery of costs, assuming costs were made against him.

19. A negative decree, it has been held severally, is incapable of being executed by the court issuing the decree and what cannot be executed, cannot be stayed further. See Kaushik Panchamatia & 3 Others vs Prima Bank Limited & Another 92020) eKLR. In addition, the applicant has not sought for an injunction in this court pending appeal. He has specifically sought for stay of the order of dismissal of his suit in the lower court.

20. Further, the Applicant has not divulged to this court whether the property which he sought an injunction to protect it from sale or disposal by the 1st Respondent was used as security to secure a loan of Kshs.169,000 subject of the prayer for the declaration that he settled the said loan fully. Without that material information being placed before this court, on the conditions attached to that loan facility, it is impossible for this court to gauge whether which was sought in the lower court was to serve any useful purpose or was for speculative purposes.

21. Back to the pre conditions for stay of execution of decree or order appealed from pursuant to the provision of Order 42 Rule 6 (2) of the Civil Procedure Rules, these conditions are:-1. The Applicant must demonstrate that substantial loss may result to the Applicant unless the order of stay is made.2. That the Application is made without unreasonable delay and3. That such security as the court orders for the due performance of such decree or order as may ultimately be binding on the applicant has been given by the applicant.4. Finally, that unless stay is granted, then the appeal if successful will be rendered nugatory and therefore the appellant will be a mere pious explorer in the court corridors in search of justice.

22. The Applicant must also demonstrate that there is sufficient cause for grant of the stay sought. The operative word is ‘and’ as used in the provision meaning all the three pre-conditions must be met simultaneously for the court to grant stay of execution of decree or order pending appeal.

23. Commencing with the second condition that the application must be made without unreasonable delay, it is clear that the delay in bringing this application is inordinate as the judgment impugned was rendered on 16th February 2023 and the appeal filed on 10th March 2023 and no explanation has been given why no application for stay was made upon the appeal being filed until 15th August, 2023.

24. Five months’ delay is inordinate and without a plausible explanation, this court cannot grant stay. Moreover, stay application is not dependent on the availability of the lower court proceedings since the applicant could still have filed an application for stay in the lower court in the first instance.

25. On the 1st condition on whether it has been demonstrated that substantial loss will be suffered by the applicant if the order of stay is not granted, the applicant has only stated in his grounds and sworn affidavit that a stay will meet the ends of justice and in the wider interest of justice and that he should be allowed to exhaust all the available options in the judicial system.

26. There is no mention of what substantial loss that the applicant will suffer or may suffer unless stay is granted. To that extent alone, the condition is not met even to the slightest extent hence a stay cannot issue on the basis of a presumed loss.

27. On whether security for the due performance of decree has been given by the applicant, no such security has been offered and the court does not fathom what security it can direct the applicant to officer for the due performance of the negative decree and with minimal information on exactly what injustice the appellant would suffer if stay is not grant.

28. For the above reasons, I find that no sufficient cause has been advanced for this court to grant stay of a negative decree appealed from as there is even no mention that costs were awarded against the appellant or that the Respondents are executing for recovery of costs, which costs as submitted by counsel for the Respondent, have not been assessed.

29. Accordingly, I find the application dated 15th August 2023 for stay pending appeal, is devoid of any merit and the same is hereby dismissed with an order that each party bear their own costs of the application.

30. Mention before the Deputy Registrar on 2/11/2023 to confirm availability of the lower court file which I hereby direct the Deputy Registrar to send a reminder.

31. I so order.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 4TH DAY OF OCTOBER, 2023. R.E. ABURILIJUDGE