[2004] KEHC 67 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT NAIROBI

Winding Up Cause 44 of 1999

IN THE MATTER OF RAI PLYWOODS (K) LTD.…. PLAINTIFF

VERSUS

IN THE MATTER OF THE COMPANIES ACT……DEFENDANT

RULING

This Notice of Motion, dated 16/12/2003, is canvassed underSection 3A of the Civil Procedure Act (Cap.21, Laws of Kenya

issupported by the affidavit of Jasbir Singh Rai of even date.

The application seeks some what interesting orders, under what one may, for want of a better phrase, call the elastic inherent jurisdiction of this court. The application prays for orders that:-

1. All further proceedings in this Cause in the HighCourt of Kenya, including the taxation of Bills ofCosts filed by the Respondent in Winding-up CauseNo.44 of 1999 and in Civil Appeal No.63 of 2001 bestayed:

(i) Initially for such period as this Court may deem just, and

(ii) thereafter at the inter-partes hearing,pending the hearing and determination bythe Court of Appeal of the Applicant'sapplication, Civil Application No. NAI 307of 2003, to set aside in to the judgmentof the Court of Appeal in Civil Appeal No.63of 2001, delivered on 30/9/2002 and tohear the Applicant's appeal filed in theCourt of Appeal on 12/4/2001 in the said Civil Appeal No.63 of 2001 afresh before adifferently constituted bench of the Courtof Appeal.

2. Costs of this application be provided for.

The grounds upon which the application for Stay is premised are

1. The applicants have lodged an application inthe Court of Appeal - Civil Application No. NAI 307of 2003 - to set aside judgment in Civil AppealNo.63 of 2001 dated 30/9/2002, on the groundsthat:-

(a) the applicants' constitutional rights underSection 77 (9) of the Kenya Constitution havebeen violated in that the appellants were notgiven a fair hearing in the Court of Appeal,"before an independent and impartial Court".

(b) the presiding Judge (A.B. Shah, J.A.) wasbiased against the appellants/applicants during the hearing of the said appeal and ingiving judgment therein.

(c) The rules of natural justice were notobserved.

(d) The said judgment is null and void.

The said application came up for hearing beforethe Court of Appeal on 20. 11. 2003 but could notbe heard owing to the shortage of Judges in theCourt of Appeal. Furthermore, the Court of Appealreferred the said application to the Chief Justicefor directions that the said application be heardbefore a bench of not less than five Judges of theCourt of Appeal on a date to be fixed as soon aspracticable.

The said application is still pending and it istherefore in the interest of justice that all furtherproceedings in this case be stayed pending thehearing and determination of the said application.

The Bill of Costs with respect to which Stay issought proceeded ex-parte to taxation before Mrs.Omondi on 10. 12. 2003 who directed that writtensubmissions were to be filed by 18/12/2003.

Unless this application is heard and Staygranted, the taxation of the said Bill will continueas aforesaid and this application will be renderedotiose to their prejudice.

It is just and equitable to grant the relief.

When the hearing came up before me on 8. 1.2004, the Respondent's raised preliminary objections, as follows:-

(i) That this Court has no jurisdiction to hear andgrant relief on the Notice of Motion dated16/12/03 as drawn and filed.

(ii) The Notice of Motion dated 16/12/03 iscontrary to law and the Constitution of Kenya.

(iii) The Notice of Motion of 16/12/03 is contrary toStatute: the Judicature Act (Cap.8, Laws ofKenya); the Appellate Jurisdiction Act (Cap.9,Laws of Kenya)and the Civil Procedure Act(Cap.2 Laws of Kenya)

(iv) There are no pending proceedings in the Courtof Appeal and there is no legal basis for therelief sought.

(v) The Notice of Motion, dated 16/12/03 is a grossabuse of the process.

I begin with the Preliminary Objections raised by theRespondents herein. The first and foremost has to do with whetheror not this Court has jurisdiction to hear and grant the relief soughtin the Notice of Motion dated 16/12/2003.

To dispose of the above question, it is important to get the factand the law right. From the pleadings and the entire documentationin this application, it is a factual matter that there is neither an appeal nor proceedings with respect to Winding up Cause No.44 of1999, pending either in the Court of Appeal or in this Court.

The only appeal with respect to the Winding Up Cause No.44 of1999 was Civil Appeal No.63 of 2001, which was heard anddetermined by the Court of Appeal, in A.B. Shah's judgment which,inter-alia, awarded the costs whose taxation is being sought to bestayed by this Court. That judgment was delivered on 13/6/2002.

Dissatisfied with the judgment of the Court of Appeal - theappellants/applicants went back to the same Court of Appeal, but thistime through a Civil Application No. NAI 307 of 2003 which sought toset aside, in toto, the judgment of the Court of Appeal dated13/6/2002.

This time round however, having run out of their legal right ofappeal, the applicants challenged the Court's judgment under theguise of violation of their Constitution rights under Section 77 (9) ofthe Constitution. They allege, in their Civil Application, bias andpartiality in A.B. Shah, J.A., the one who delivered the main judgment.

In the said Civil Application, the applicants sought Stay ofExecution of the decree, especially the taxation, arising from thejudgment by the Court of Appeal, pending the hearing anddetermination of their Civil Application.

The Court of Appeal declined to grant such Stay, clearlybecause the Court would effectively be reviewing its own decision, forwhich a bench of not less than 5 Judges of the Court of Appeal wouldbe required.

The Court referred the matter to the Chief Justice for directionsfor such an application before such bench be fixed as soon aspracticable. The matter, I was told is still pending with the Chief Justice.

I have gone into the above detail to set the stage for thefollowing conclusions.

The High Court, under Order 41 Rule 4 of the Civil ProcedureRules, may grant Stay of Execution pending appeals against orders,and/or decrees, of this Court. But this is where there is pending inthe Court of Appeal, and the decree/order appealed against is of thisCourt.

None of the above obtains in this application for Stay. TheOrder for costs was by the Court of Appeal, the Civil Application wasfiled in the Court of Appeal.

The only Court that can grant such a Stay is the Court ofAppeal; which this Court is not. But it should be noted that forwhatever reasons, the Court of Appeal declined to grant such a Stay.

To seek to obtain an Order of Stay against a judgment of theCourt of Appeal from the High Court is not only misconceived,mischievous, but unjust. This is tantamount to equating this HighCourt with the Court of Appeal under the guise of inherent powers insearch of justice. The tenets of justice are double edged and is asunjust to treat unequals as equals, as it is unjust to treat equals as unequals.

Were this Court to grant the Stay prayed for in this application,it would be tantamount to counter-manding an Order or decree ofthe Court of Appeal. I have not found any law or authority tosupport me in such an action, were I to grant such a Stay. None ofthe authorities cited by the Counsel is of any assistance to theapplicants herein.

Counsel for the applicants hammered on the Constitutionalrights of the applicants under Section 77 (9) of the KenyanConstitution, and how those rights were violated through bias andpartiality and alleged corruption of one of the Judges of Appeal whoheard and decided Civil Appeal No.63 of 2001. The Counsel wentfurther, and strangely relying on the grounds of the very CivilApplication now pending in the Court of Appeal, stated that thejudgment is null and void.

With all due respect, common sense would show that theallegations in the Civil Application can only be heard and determinedby the Court of Appeal, where the Civil Application is filed.

The upshot of all the foregoing is that this Court has nojurisdiction to entertain or grant the relief sought by the applicants. Iam convinced that Counsel for the applicants knows this, and that iswhy I find this application simply an abuse of the process of the Court.

I accordingly uphold the Preliminary Objection that this Courthas no jurisdiction, inherent or otherwise, to hear and grant the relief sought. I dismiss the application with costs in favour of theRespondents and against the Applicants.

DATED in Nairobi, this 13th day of April, 2004.

O.K. MUTUNGI

JUDGE