[2022] KEHC 15373 (KLR)

Onepay Credit Limited v Macharia & another (Civil Appeal E644 of 2022) [2022] KEHC 15373 (KLR) (Civ) (11 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15373 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E644 of 2022

JK Sergon, J

November 11, 2022

Between

Onepay Credit Limited

Applicant

and

Edward Mwangi Macharia

1st Respondent

Stanley Macharia Mwangi

2nd Respondent

Ruling

1. The appellant/applicant in the present instance brought the notice of motion dated August 19, 2022 supported by the grounds presented on its face and the facts stated in the affidavit of its General Manager, Nazir Madatali. Here, the applicant sought for a stay of all proceedings in Milimani Chief Magistrates Court COMMSU No 055 of 2022 pending the hearing and determination of the appeal lodged against the order made on August 15, 2022 in the abovementioned suit; an order for a stay of the abovementioned order pending appeal; and a further order to the effect that the suit be allocated to any other judicial officer other than Honourable E Kagono (Mr) at Milimani Commercial Courts for hearing and disposal.

2. To oppose the motion, the 2nd respondent put in a replying affidavit he swore on September 26, 2022, to which the applicant rejoined with the further affidavit sworn by Nazir Madatali on October 6, 2022.

3. The 1st respondent did not file any response to the motion or participate at the hearing thereof.

4. The motion was canvassed through brief oral arguments echoing the averments made in the respective affidavits.

5. I have considered the grounds featuring on the face of the motion; the facts deponed in the affidavits supporting and opposing the motion respectively; and the brief oral arguments.

6. It is clear from the instant motion that the issues arising for determination are three (3)-fold in nature.

7. I will first address the issue on stay of the order made by the trial court on August 15, 2022.

8. On the one part, the applicant states that on the abovementioned date, the trial court entertained the application dated August 8, 2022 filed by the respondents herein and seeking a mandatory injunction at the interlocutory stage.

9. The applicant further states that on attending court for the hearing of the abovementioned application, its advocate sought time to put in a response to the application but which request was disregarded and that the court proceeded to issue the injunctive order.

10. The 2nd respondent retorts by stating that the instant motion is unfounded since there is nothing to indicate that the order made by the trial court has been challenged.

11. The 2nd respondent through his Advocate Omondi, argues that the abovementioned orders made by the trial court are not oppressive to any of the parties and merely sought to protect the subject matter of the suit, being the motor vehicle registration number KCS 795N (“the subject motor vehicle”).

12. Upon my perusal of the record, I note that the applicant filed a memorandum of appeal on August 19, 2022 seeking to challenge the order made by the trial court on August 15, 2022. This position refutes the averment made by the 2nd respondent that the abovementioned order has not been challenged.

13. I note from the record that none of the parties availed a copy of the impugned order to shed light on the nature of the order issued by the trial court, though mention was made that it is in the nature of a mandatory injunction.

14. In view of the foregoing circumstances, I am hesitant to grant the stay order sought in respect to the abovementioned order at this stage.

15. The second issue for determination is whether or not to grant a stay of proceedings in the suit, pending the appeal.

16. It is noteworthy that the granting of a stay of proceedings is purely a matter of judicial discretion. The court in the case of In re Estate of Leah Nyawira Njega (Deceased) [2021] eKLR listed the following as the three (3) main principles for consideration in determining an application seeking a stay of proceedings:“a) Whether the applicant has established that he/she has a prima facie arguable case.b) Whether the application was filed expeditiously, andc) Whether the applicant has established sufficient cause to the satisfaction of the court that it is in the interest of justice to grant the orders sought.”

17. The first principle relates to the expeditious filing of an application. This principle was not necessarily touched on by the parties.

18. Upon my perusal of the record and as earlier indicated, the impugned ruling was delivered on August 15, 2022 while the instant motion was filed on August 19, 2022. In my view, the motion has been timeously filed.

19. The second principle concerns itself with whether the applicant has an arguable appeal with reasonable chances of success.

20. On the one part, the applicant states that it has an arguable appeal since the trial court did not grant it an opportunity to file a response to the respondents’ application seeking a mandatory injunction, prior to making its orders, thereby denying it the right to be heard.

21. The applicant further states that there are various other applications which are pending before the trial court, all of which are seeking interlocutory injunctive orders.

22. In retort, the 2nd respondent states that the applicant has not sought to challenge the orders made by the trial court on merit.

23. A reading of the memorandum of appeal relating to the appeal shows that the appeal is essentially challenging the decision of the trial court in granting the injunction in the absence of considering a response from the applicant.

24. In my view therefore, the appeal in question raises prima facie arguable points of law and fact and whose outcome will directly impact on the suit.

25. Turning to the third principle on the interest of justice vis-à-visthe subject of prejudice, the applicant on the one hand is of the view that unless an order for a stay of proceedings is granted, it stands to be greatly prejudiced.

26. On the other hand, it is the averment of the 2nd respondent that the applicant has not shown the prejudice that will be visited upon it should the orders sought be denied.

27. Upon weighing the rival positions above and the foregoing circumstances, I am satisfied that the applicant has reasonably shown that unless there is a stay of proceedings during the pendency of the appeal, there is a likelihood that prejudice and hardship will be visited upon it.

28. I will also consider the fourth principle touching on the expeditious disposal of cases vis-à-vis proper use of judicial time. I borrow from the case of Ezekiel Mule Musembi v H Young & Company (EA) Limited [2019] eKLR where the court held that the expeditious disposal of cases ought to be a factor for consideration in determining applications seeking an order for a stay of proceedings.

29. In the present instance, it is apparent that the suit which was instituted in the year 2022 arises out of an alleged outstanding debt. It is also apparent that the outcome of the appeal will determine the course that the present suit will take especially in respect to the injunctive order currently in place. It would therefore only be a practical and proper use of judicial time for the relevant parties to first pursue the appeal before undertaking any further proceedings in the suit.

30. The third and final issue for determination is whether the case ought to be allocated to a different magistrate for hearing and disposal.

31. The applicant is of the view that assigning the matter to a different judicial officer will serve to promote the interest of the parties, whereas the 2nd respondent is of the view that the prayer for re-allocation of the suit is unsubstantiated.

32. Upon my consideration of the rival positions by the parties and the present circumstances, I note that the appeal is yet to be heard and determined and hence, to make a determination on re-allocation of the suit would be pre-emptive. I am therefore not convinced that it would be proper for me to determine this issue at this stage.

33. The upshot therefore is that the notice of motion dated August 19, 2022 partially succeeds. Accordingly, there shall be a stay of further proceedings in Milimani Chief Magistrates Court COMMSU No 055 of 2022 pending the hearing and determination of the appeal. Costs of the motion shall abide the outcome of the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 11TH DAY OF NOVEMBER, 2022. ……………………………J. K. SERGONJUDGEIn the presence of:……………………………. for the Appellant/Applicant……………………………. for the 1st Respondent……………………………. for the 2nd Respondent