[2022] KEHC 1590 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

CIVIL APPEAL NO E1 OF 2021

PHILEMON KIPTONUI MELI....................................................APPELLANT/APPLICANT

VERSUS

BEATRICE KIMOI CHESIRE...........................................................................RESPONDENT

(Being appeal from the ruling by Hon. B. Kiptoo, Senior Resident Magistrate,

in Eldoret CM CC No.E385 of 2021 delivered on 28/9/2021)

RULING

Introduction & Background

1. Vide an application dated the 4th of October 2021, the appellant herein primarily seeks an order of stay of execution in Eldoret CMCC No. E385 of 2021 pending the hearing and determination of the current appeal.

2. The application is supported by the affidavit of the appellant sworn on even date wherein being aggrieved by the ruling of Hon B Kiptoo delivered on the 28th of September 2021 in Eldoret CMCC No. E385 of 2021, he filed the instant appeal against the said decision. He avers that the respondent is the process of executing against the appellant pursuant to the said ruling. The appellant is apprehensive that unless the orders sought are granted, his appeal stands to be rendered nugatory.

3. The application was opposed by the respondent through her reply sworn on the 13th of October 2021 wherein she averred that the application is incompetent, bad in law and amounts to an abuse of the court process. The respondent observed that vide sale agreement dated the 27th of June 2018, the appellant herein sold her 1 acre of land curved from parcel known as MOIBEN/LOLKINYE BLOCK 3 (ITET)/ 109 for consideration of Kshs 600,000 which was paid in 2 installments. However, she realized she had been duped hence commencing the recovery proceedings vide Eldoret CMCC E385 of 2021. Vide an application dated the 18th of June 2021, the respondent sought to strike out the defence and entry of summary judgment against the appellant/applicant which application was determined in her favour vide the impugned ruling that the appellant seeks to stay.

4. In addition, the respondent averred that the appellant has no right to appeal as a matter of right against the impugned ruling without leave of the trial court and further averred that there is no competent appeal before this court since no leave was sought in the lower court. Further, the respondent averred that no substantial loss will be occasioned to the applicant and in any case, the substantial loss, if any, in this case can be compensated by an award of damages including money in case the appeal succeeds.

5. The application, on direction of court, was canvassed by way of written submissions

Determination

6. Having carefully considered the parties pleadings, submissions and annextures, I find that two issues arise for determination namely; whether there is a competent appeal before court and if so, whether the applicant has met the threshold for grant of stay orders sought.

a. Whether the appeal is competent

7. The respondent averred and submitted that the instant appeal is incompetent since the appellant’s counsel failed to seek leave to appeal against the ruling of Hon. B Kiptoo delivered on the 28th of September 2021.

8. On the other hand, the appellant while relying on the decision of Justice Fred O. Ochieng in First Insurance Co. Ltd vs Osienala (Friends of Lake Victoria) & another Kisumu Civil Appeal No. 55 of 2020 submitted that there is an automatic right of appeal against the impugned order.

9. Section 75 (1) of the Civil Procedure Act provides for the orders against which an appeal would lie as of right and/or with the leave of the court. It provides thus:

75 (1) An appeal shall lie as of right from the following orders, and shall also lie from any other order with the leave of the court making such order or of the court to which an appeal would lie if leave were granted-

(a) An order superseding an arbitration where the award has not been completed within the period allowed by the court;

(b) An order on an award stated in the form of a special case;

(c) An order modifying or correcting an award;

(d) An order staying or refusing to stay a suit where there is an agreement to refer to arbitration;

(e) An order filing or refusing to file an award in an arbitration without the intervention of the court;

(f) An order under section 64;

(g) An order under any of the provisions of this Act imposing a fine or directing the arrest or detention in prison of any person except where the arrest or detention is in execution of a decree;

(h) Any order made under rules from which an appeal is expressly allowed by rules.

10. On the other hand, Order 43 Rule (1) of the Civil Procedure Rules sets out the orders and rules in respect of which appeals would lie as of right. Under Order 43(2) it is provided that an appeal shall lie with the leave of the court from any other order made under the Rules. This means that unless the order sought to be appealed against falls under the orders which are appealable as of right under Order 43(1), leave to appeal must be obtained before such an appeal can be preferred.

11. The procedure for obtaining leave is provided under Order 43(3) which states as follows: -

(3) An application for leave to appeal under Section 75 of the Act shall in the first instance be made to the court making the order sought to be appealed from, either orally at the time when the order is made, or within fourteen days from the date of such order.

12. In the instant case, it is clear that the appeal arises from order 36 which is one of the provisions listed under Order 43 (1) where an appeal lies as of right. Consequently, courts leave is not required. The appeal is therefore competent.

b. Whether the applicant has met threshold for grant of orders sought

13. Order 42 Rule 6 (2) of the Civil Procedure Rules bars this Court from ordering stay of execution pending appeal unless –

1. The Application is brought without inordinate delay.

2. The Applicant demonstrates that he will suffer substantial loss unless stay is ordered, and

3. The Applicant is willing to give security as the Court may deems fit to order.

14. The requirements for grant of stay of execution pending appeal were set out in Butt v Rent Restriction Tribunal [1982] KLR 417,wherein the Court of Appeal 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 42 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.”

Inordinate Delay

15. The ruling of Hon B. Kiptoo was delivered on the 28th of September 2021 while the memorandum of appeal was filed on the 5th of October 2021. In addition, the application herein was filed on the 5th of October 2021. It is clear that there was no delay in filling the appeal and the instant application.

Substantial Loss

16. The applicant has submitted that he stands to suffer substantial loss if the stay order is not granted. On the other hand, the respondent submitted that no substantial loss will be occasioned to the respondent.

17. In my view the appellant has not demonstrated the substantial loss that he stands to suffer. It is not enough to simply state that substantial loss will occur. A party must demonstrate the specific loss that he stands to suffer if the order sought is not granted.

18. Be that as it may, I take cognizance of the fact that the right of Appeal is enshrined in the right to a fair hearing and remains a fundamental right in the interest of justice. That is, a party has the right to seek justice to the highest court in the land.

19. Consequently, and in the interest of justice, I allow the instant application. Stay of execution of judgement delivered on the 28th of September 2021 by Hon. B. Kiptoo be and is hereby granted on conditions that:

1. The Appellant/Applicant do deposit the entire decretal sum in a joint interest earning account in the names of the Advocates for both parties within 30 days from the date hereof.

2. Failure to meet condition (1) above, the orders stand vacated and the respondent will be at liberty to execute.

3. Costs of this application shall be in the appeal.

DATED, SIGNED AND DELIVERED AT ELDORET ON 15TH OF MARCH, 2022

E. K. OGOLA

JUDGE