[2014] KEHC 1525 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

CIVIL APPEAL NO. 103 OF 2012

PHILISTER ODERO OCHIENG...............................................APPELLANT

VERSUS

EASTERN PRODUCE (K) LIMITED.......................................RESPONDENT

(Being an appeal from the Ruling of Hon. B. Mosiria (Principal Magistrate)in Kapsabet

PrincipalMagistrate's Civil Case No. 97 of 2011 delivered on 2nd February, 2012)

RULING

The application for determination before me is the Notice Motion dated 24th October, 2012, brought under Article 159 of the Constitution, Section 1A, 3, 3A and 63 (e) of the Civil Procedure Act, Order 42 Rule 6 of the Civil Procedure Rules and all other enabling provisions of the law.

The main prayer is for stay of proceedings and/or further proceedings and/or hearing and/or further action pending the hearing and determination of the appeal in the following matters:-

1. Kapsabet PMCC No. 97 of 2011 Philister Odero Ochieng Vs. Eastern Produce (K) Limited (Sitoi Tea Estate) Ref: 1/2/6/244

2. Kapsabet PMCC No. 293 of 2010 Eliud Kipkoech Chepkwony Vs. Eastern Produce (K) Limited (Chemomi Tea Estate) Ref: 1/2/6/226

3. Kapsabet PMCC No. 294 of 2010 James Kimani Vs. Eastern Produce (K) Limited (Kaboswa Tea Estate) Ref: 1/2/6/227

4. Kapsabet PMCC No. 310 of 2010 Josyline Jepkorio Kemboi Vs. Eastern Produce (K) Limited (Kaboswa Tea Estate) Ref: 1/2/6/233

5. Kapsabet PMCC No. 166 of 2011 Magdalena Chepkoech Kulopa Vs. Eastern Produce (K) Limited (Kibabet Tea Estate) Ref: 1/2/6/259

6. Kapsabet PMCC No. 130 of 2011 Joash Simbili Kanga Vs. Eastern Produce (K) Limited (Kapsumbeiwa Tea Estate) Ref: 1/2/6/250

7. Kapsabet PMCC No. 184 of 2011 Alfred Shabeya Mwale Vs. Eastern Produce (K) Limited (Kapsumbeiwa Tea Estate) Ref: 1/2/6/264

8. Kapsabet PMCC No. 186 of 2011 Benard Mbuka Kagota Vs. Eastern Produce (K) Limited (Kapsumbeiwa Tea Estate) Ref: 1/2/6/261

9. Kapsabet PMCC No. 110 of 2011 Joseph Mamboleo Khamadi Vs. Eastern Produce (K) Limited (Savani Tea Estate) Ref: 1/2/6/245

10. Kapsabet PMCC No. 188 of 2011 Peter Yavesi Abukuse Vs. Eastern Produce (K) Limited (Kapsumbeiwa Tea Estate) Ref: 1/2/6/263

11. Kapsabet PMCC No. 116 of 2011 Leonard Giragwa Munemo Vs. Eastern Produce (K) Limited (Kapchomo Tea Estate) Ref: 1/2/6/249

12. Kapsabet PMCC No. 162 of 2011 Gilbert Muhunzi Makotsi Vs. Eastern Produce (K) Limited (Savani Tea Estate) Ref: 1/2/6/258

The application is premised on the following grounds:-

(a) That the subordinate court delivered a ruling on the 2nd October, 2012 subject of this appeal.

(b) That the said ruling was delivered in the absence of the Appellant/Applicant and without notice thereof.

(c) That leave was sought to appeal against the said ruling and/or decision which the subordinate court granted on the 8th October, 2012.

(d) That the Appellant/Applicant was dissatisfied with the court's decision and/or ruling and wishes to challenge the same on appeal.

(e) That before the application resultant of the ruling complained of could be heard, the parties entered into a consent to consolidate the matters herein be mentioned for purposes of determining the Respondent's application for validation of suit.

(f) That the court's ruling and/or decision appealed from effects all the cases herein below pursuant to the consent recorded by the parties in the subordinate court to wit;

1. Kapsabet PMCC No. 97 of 2011 Philister Odero Ochieng Vs. Eastern Produce (K) Limited (Sitoi Tea Estate) Ref: 1/2/6/244

2. Kapsabet PMCC No. 293 of 2010 Eliud Kipkoech Chepkwony Vs. Eastern Produce (K) Limited (Chemomi Tea Estate) Ref: 1/2/6/226

3. Kapsabet PMCC No. 294 of 2010 James Kimani Vs. Eastern Produce (K) Limited (Kaboswa Tea Estate) Ref: 1/2/6/227

4. Kapsabet PMCC No. 310 of 2010 Josyline Jepkorio Kemboi Vs. Eastern Produce (K) Limited (Kaboswa Tea Estate) Ref: 1/2/6/233

5. Kapsabet PMCC No. 166 of 2011 Magdalena Chepkoech Kulopa Vs. Eastern Produce (K) Limited (Kibabet Tea Estate) Ref: 1/2/6/259

6. Kapsabet PMCC No. 130 of 2011 Joash Simbili Kanga Vs. Eastern Produce (K) Limited (Kapsumbeiwa Tea Estate) Ref: 1/2/6/250

7. Kapsabet PMCC No. 184 of 2011 Alfred Shabeya Mwale Vs. Eastern Produce (K) Limited (Kapsumbeiwa Tea Estate) Ref: 1/2/6/264

8. Kapsabet PMCC No. 186 of 2011 Benard Mbuka Kagota Vs. Eastern Produce (K) Limited (Kapsumbeiwa Tea Estate) Ref: 1/2/6/261

9. Kapsabet PMCC No. 110 of 2011 Joseph Mamboleo Khamadi Vs. Eastern Produce (K) Limited (Savani Tea Estate) Ref: 1/2/6/245

10. Kapsabet PMCC No. 188 of 2011 Peter Yavesi Abukuse Vs. Eastern Produce (K) Limited (Kapsumbeiwa Tea Estate) Ref: 1/2/6/263

11. Kapsabet PMCC No. 116 of 2011 Leonard Giragwa Munemo Vs. Eastern Produce (K) Limited (Kapchomo Tea Estate) Ref: 1/2/6/249

12. Kapsabet PMCC No. 162 of 2011 Gilbert Muhunzi Makotsi Vs. Eastern Produce (K) Limited (Savani Tea Estate) Ref: 1/2/6/258

(g) That this court has power to grant and/or entertain the instant application in the best interest of justice and fairness.

(h) That orders sought will prevent the ends of justice from being defeated.

(i) That no prejudice will be suffered if the orders sought herein issue.

The application is supported by the affidavit of Alfred King'oina Nyairo, counsel for the Applicant sworn on 24th October, 2012. The gist of the supporting affidavit is that the Applicant has already appealed against the ruling of the subordinate court delivered on 11th September, 2012. That both counsel on record have already filed a consent to have all the matters consolidated, for purposes of uniformity in the outcome. That the said suits usually have diverse dates for hearing and if the hearings continued, the Applicant would be greatly prejudiced.

The Respondent opposed the application by way of a Replying Affidavit he swore on 30th October, 2012. He depones that the Applicant has not satisfied the conditions set out under Order 42 Rule of the Civil Procedure Rules, that it has not demonstrated it has an arguable appeal and that the application is based on misapprehension. He urged the court to dismiss the same.

In a Supplementary Affidavit sworn by David Kirui, the Applicant's Manager on 14th January, 2013, the Applicant argues that the application dated 14th June, 2012 was heard and a ruling delivered in the absence of the Applicant's counsel. He states that the appeal is premised on that ruling that allowed the application.

Parties filed written submissions to the application. Those of the Applicant are dated 19th March, 2014. In summary the Applicant argues that it has an arguable appeal which I interpret to mean that if the application is not allowed, the appeal would be rendered nugatory.

Those of the Respondent are dated 1st July, 2014. Counsel of the party argues that the application is not merited and is aimed at delaying the expeditious disposal of the pending suits before the subordinate court. It is also submitted that the Applicant has not satisfied the conditions set out under Order 42 Rule 6 of the Civil Procedure Rules.

I have accordingly considered the entire application and the respective submissions. I take the following view of the application.

The application is basically premised under Order 42 Rule 6 of the Civil Procedure Rules. Since the orders sought are for stay of further proceedings and hearing of the respective suits, the most relevant provisions of Order 42 is Rule 6 (1) and (2). The same read as follows;

“6 (1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except 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 sub-rule

(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.”

Under sub-rule (2), the Applicant must satisfy the following conditions;

(i) That if the orders sought are not granted, it will suffer substantial loss.

(ii) That the application was filed without undue delay.

(iii) That the Applicant is ready and will give security in due performance of the decree.

SUBSTANTIAL LOSS

The appeal herein is against a ruling that allowed the Respondent's application dated 14th June, 2012. That application was filed in KAPSABET PRINCIPAL MAGISTRATE'S CIVIL CASE NO. 97 OF 2011 – PHILISTER ODERO OCHIENG -VS- EASTERN PRODUCE (K) LTD (SITOI TEA ESTATE) (suit No. 1 in the Schedule). In the suit, the Respondent is the Plaintiff and was the Applicant in the application. He sought the orders that leave be granted for extension of time in which the suit was filed and pursuant to granting the first prayer, the suit be validated and deemed as filed in court.

From both the Supporting and Replying Affidavit, the application was allowed.

The applicant contests the fact that the ruling was delivered in the absence of its lawyer. I stop here and ask, how would the court ascertain this fact yet it has not been furnished with the proceedings and the coram of the court on the date the ruling was read? That aside, there is no contest that the Applicant herein was not heard in the application. Effectively, their submissions at the hearing thereof were taken into account. Therefore, the absence of the Applicant's counsel notwithstanding the outcome of the ruling would not change.

More importantly, the Applicant reveals in both the Supporting and the Supplementary Affidavit that parties had agreed to have all the subject suits consolidated and heard by one court. Indeed the consent is annexed to the Supporting Affidavit. What this means is that, ab initio, the Applicant was agreeable that the suits were good for hearing and had no problem if they were heard by one court. In the instance, coming around to state that they should be stayed is not well intended, and to the court is an argument not made in good faith.

Thus, whereas the Applicant is entitled to its right to appeal, the consent itself was a representation that it had no issue with the validity of the suit. As such, if the suits proceeded as scheduled and as per the consent of the parties, no prejudice would be suffered by the Applicant. Indeed, such hearing would be as per the intention of the parties.

It is also worth noting that this court was not furnished with a copy of the ruling that is subject of the appeal. I cannot therefore discern with accuracy its terms. But from the face of the application, the ruling was only in respect of civil suit No. 97 of 2011 (No. 1 on the Schedule). Hence, only the said suit was validated upon grant of the prayer of extension of time within which it ought to have been filed. That being the case, I find no justification, if this application were to succeed, to stay proceedings in all the other suits that were to be consolidated with this suit No. 97 of 2011.

From the foregoing, it is my view that the Applicant has not demonstrated that it would suffer substantial loss if the prayer sought is not granted.

UNDUE DELAY

The appeal herein was filed on 15th October, 2012 and the instant application on 24th October, 2012, being a difference of only nine (9) days. Hence the application was filed in a timely manner.

SECURITY FOR DUE PERFORMANCE OF ORDER/DECREE

Although the Applicant did not make any offer for the security, the court may nonetheless direct that such security be furnished as would satisfy the due performance of an order or security.

The instant case presents a very unique situation, given that none of the suits has been heard. Even in Civil Suit No. 97 of 2011 that is subject of the ruling appealed against, no judgment has accrued yet. The success of the suit is thus unknown. In such a case, it would not be prudent to order that security be furnished.

THE DISCRETION OF THE COURT

The application is also brought under Section 1A, 3, 3A and 63 (e) of the Civil Procedure Act which calls upon the court to exercise its discretion in granting the orders sought.

Each of the above provisions reads as follows;

“1A (1) The overriding objective of this Act and the rules made hereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act.

(2) The Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective specified in subsection (1).

(3) A party to civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court.”

“3. In the absence of any specific provision to the contrary, nothing in this Act shall limit or otherwise affect any special jurisdiction or power conferred, or any special form or procedure prescribed, by or under any other law for the time being in force.”

“3A.Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”

“63 (e). Make such other interlocutory orders as may appear to the court to be just and convenient.”

The facts of this case demonstrate that parties had consented that the subject suits be heard in a consolidated manner. Civil suit No. 97 of 2011 would be the test suit for all the other suits. The intention of the consolidation was to ensure uniformity in the outcome of the court's decisions as well as to facilitate an expeditious disposal of all of them at once. That is the spirit and letter of Section 1A of the Civil Procedure Act. If then the proceedings in the suits are stayed, the net effect would be to put a curtain on justice as nothing would proceed hereafter. That would greatly prejudice the Respondent and all other Plaintiffs in the suits as well as curtail the smooth administration of justice.

I agree with the Applicant, that this court has supervisory powers over the subordinate courts. Such powers ought, however, to be exercised judiciously and to facilitate the ends of justice to be met. The circumstance of this case is such that if the orders sought are granted, ends of justice will not be met.

At this juncture, I do not think that this court ought to look into the success of the pending appeal. In a similar application in my own ruling in ELDORET HIGH COURT CIVIL APPEAL NO. 115 OF 2012 KAPCHORUA TEA COMPANY LTD -VS- ALFRED SHIMEKHA KISANGA, I observed that it is risky to delve into the merits and demerits of a pending appeal as that would be at the risk of determining the appeal itself.

In ELDORET HIGH COURT CIVIL APPEAL NO. 142 OF 2010 KENYA POWER AND LIGHTING CO. LTD -VS- JOHN MOTURI OKIOGA, Hon. Justice Azangalala, J. (as he then was) opined that in an application for stay of execution, all the court needed to address itself to is whether the Applicant had satisfied the provisions of Order 42 Rule 6 of the Civil Procedure Rules. Other issues raised in that application were considered not to fall under the consideration of the Civil Procedure Rules.

In that regard the authority in the case of DANIEL NDEKE GATUMU T/A NDEKE GATUMU & CO. ADVOCATES -VS- CHRISTINE WANGARE GACHEGE (2005) e KLR cited by the Applicant's counsel and that of JOEL OMAGWA ONYANCHA -VS- SIMON NYAUNDI, NAIROBI COURT OF APPEAL CIVIL APPLICATION NO. 104 OF 2008 (UR 62/2008) may not apply in the instant case. Suffice it to say, the two authorities were premised on Rule 5 (2) (b) of the Court of Appeal Rules.

In the end, this application must fail. It is dismissed with costs.

DATED and DELIVERED at ELDORET this 21st day of November, 2014.

G. W. NGENYE - MACHARIA

JUDGE

In the presence of:

No appearance for M/s Nyairo & Co. Advocates for the Appellant/Applicant

(duly served with ruling notice)

Mr. Mwinamo holding brief for Chanzu for the Respondent