[2022] KEHC 16447 (KLR)

Registered Trustees African Brotherhood Church v Mogaka; Kamba (Defendant) (Miscellaneous Application E097 of 2022) [2022] KEHC 16447 (KLR) (8 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16447 (KLR)

Republic of Kenya

In the High Court at Machakos

Miscellaneous Application E097 of 2022

MW Muigai, J

December 8, 2022

Between

Registered Trustees African Brotherhood Church

Applicant

and

Clinton Onyiego Mogaka

Respondent

and

Leonard Munyao Kamba

Defendant

(Being an application for stay of execution against the Ruling dated 25th May, 2022 in Machakos CMCC 27 of 2019 by Hon. Alfred Kibiru)

Ruling

Notice Of Motion 1. By a Notice of Motion dated July 13, 2022, the Applicant seek the following orders:-1. Spent2. Spent3. Spent4. Spent5. spent6. That pending full and final determination of the intended appeal this Court grant a stay of execution of the respective Judgment dated October 7, 2020 and ruling dated May 25, 2022 Machakos CMCC No 27 of 2019 Clinton Onyiego Mogaka vs The Registered Trustees African Brotherhood Church and Leonard Munyao Kamba.7. That this Court stay the sale of a seized Toyota Hilux Double Cap registration Number xxxx that has been detained at Tumbo yard pursuant to warrants of attachment issued in Machakos CMCC No 546 of 2018 or alternatively, order the return of the vehicle to the Applicant to prevent rapid depreciation of value at the yard on condition that the said vehicle will not be sold by the Applicant.8. That this Court call for the record of proceedings Machakos CMCC No 27 of 2019 Clinton Onyiego Mogaka vs The Registered Trustees African Brotherhood Church and Leonard Munyao Kamba (test suit) and give appropriate direction that it may consider necessary for the dispensation of justice given the circumstances of the suit.9. That the costs of this application be in the cause.

2. The Motion is supported by the affidavit of the Joshua Ndeke sworn on July 13, 2022 deposing as follows:- that the impugned suit Machakos CMCC No 27 of 2019 Clinton Onyiego Mogaka vs The Registered Trustees African Brotherhood Church and Leonard Munyao Kamba was filed in the Trial Court and later, an application was filed by Leonard Munyao Kamba seeking to have this suit selected as the test suit; that the decree was substantially issued by the Trial Court; that warrant of attachment were issued; that prior to the Trial Court delivering its Ruling parties filed their respective written submissions of which the Applicant filed theirs on January 18, 2022; that the Trial Court delivered its ruling dismissing their application with costs and among the reasons given by the Court is that the application was unprosecuted on account of lack of written submissions; that the judgment and Ruling effectively allowed execution of all the seven suits and potentially different suits; that CMCC 546 if 2918 is currently undergoing execution whereby a vehicle registration Number xxxx Toyota Hilux Double cab has already been seized while in use and detained at Tumbo yard; that if granted stay they will abide by conditions for stay of execution that this Court will issue which includes furnishing of security.

1ST Respondents Replying Affidavit 3. In opposition to the application, the Respondent swore a replying affidavit on July 25, 2022. He averred that the suit motor vehicle belongs to the Applicant as the registered owner and the 2nd Respondent as the beneficial owner.

4. That the 2nd Respondent filed an Appeal of the judgment in the High Court.

5. That the 2nd Respondent has failed to satisfy the Court orders of the January 25, 2021 necessitating execution against him.

6. That the Applicant has all along been aware of the pendency of this suit and the other suits as admitted in their supporting affidavit.

7. That the Applicant has not demonstrated what loss it stands to suffer if the instant application is dismissed.

Applicant’s Submissions 8. On whether the Applicant was duly served with the pleadings it is submitted that in the case of Karatina Garments limited –vs- Nyanarua [1976] KLRas quoted in the case of Peter Gitahi Kamaitha –vs- Nyeri Municipal Council [2014] eKLR the Court held thus;-We are of the view that in a case like this one where the respondent denied having been served with a summons, it was proper for the Court to inquire into this aspect of the matter; and in the face of the conflicting affidavits filed, it was again proper for the deponents to be examined on oath to try and ascertain the truth.'

9. In the instant case the Applicant only became aware of the impugned test suit when warrants of attachment were served upon it to begin execution of the ex-parte judgement. Therefore the Applicant was denied opportunity to participate in the impugned suit, they were condemned unheard and therefore this warrant this application and the intended appeal meritious.

10. On whether the Court should exercise its discretion to set aside the exparte judgment dated October 7, 2022, reliance is made in the case ofMureithi Charles & Another –vs- Jacob Atina Nyagesuka [2022] eKLR Civil Appeal E10 of 2020 stated thus;-'As was held by the Court of Appeal in CMC Holdings Ltd vs Nzioki [2004] KLR 173:'In an application for setting aside ex parte judgement, the Court exercises its discretion in allowing or rejecting the same. That discretion must be exercised upon reasons and must be exercised judiciously. In law the discretion that a court of law has, in deciding whether or not to set aside ex parte order was meant to ensure that a litigant does not suffer injustice or hardship as a result of amongst other an excusable mistake or error. It would not be proper use of such discretion if the Court turns its back to a litigant who clearly demonstrates such an excusable mistake, inadvertence, accident or error. Such an exercise of discretion would be wrong principle.'

11. On whether the Court should allow the Applicant to appeal out of time it is submitted that at the time of lodging the first application for stay of execution at the Trial Court the period to lodge an appeal had lapsed by a period of one year when warrants of attachment were issued and proclamation conducted on the applicants which notified them of entry of the ex-parte judgment.

12. Reliance is made in the case ofZacchaeus Omia Juma –Vs- Nicholas Kirangi [2021] eKLR Civil Appeal No E068 of 2021 where the Court stated as follows;Par 41. The considerations to be made in a request for leave to file appeal out of time are found in several decisions. The same were suggested in the case of Mwangi v Kenya Airways Ltd [2003] KLR. They include the following:(a)The period of delay.(b)The reason for the delay.(c)The arguability of the appeal.(d)The degree of prejudice which could be suffered by the respondent if the extension is granted(e)The importance of compliance with time limits to the particular litigant or issue; and(f)The effect if any on the administration of justice or public interest if any is involved.

13. In the instant case the Applicant has adequately justified the reasons for the delay on account of plenty of factors outside the control of the Applicant and the same was not in any way deliberate.

14. On who should bear the costs of this suit reliance is made in the case of Jasbir Singh Rai & 3 Others –vs Tarlochan Singh Rai & 4 others [2014] eKLR Petition 4 of 2012.

15. The Applicant finally submit that it has successfully argued its application and pray that this Court awards them the costs of the suit.

1ST Respondent’s Submissions 16. It is submitted that the delay in filing this application was inordinate as it was brought before this Court almost two months after the delivery of the Ruling subject of the intended appeal and as such there is inordinate delay. That no good reason or sufficient cause has been provided to the Court to explain the said delay and no leave has been sought to file the appeal out of time and as such the application herein must fail and be dismissed with costs to the 1st Respondent.

17. The Applicant has not demonstrated that no prejudice will be suffered by the Respondent if the application is allowed.

18. The Applicant has not demonstrated if it will suffer substantial loss if this application is disallowed.

19. The Applicant must provide security which it has not demonstrated what security it intends to put up in this matter.

20. Reliance is made in the case Misc Civil application No 401 of 2018 – Nginyanga Kavole – vs- Mailu Gideon relied on Nairobi Milimani HCCC No 2255 of 2000 [2002] 1 EA First American Bank of Kenya ltd –vs- Gulab P Shah & 2 others and Civil Application No Nai 179 of 1998 Union Insurance Co of Kenya ltd –vs- Ramzan Abdul Dhanji where the Court held that;-'Five months’ delay is clearly an afterthought and the applicant is under a duty to satisfactorily explain such delay. In this case the applicant who was represented by counsel during the delivery of the judgement ought to have been aware of the reasons for the dismissal of his case and should have moved with alacrity in filing his appeal. He himself was made aware of the fact of the dismissal of his case two days after the event but just went home for another 5 months.'The Court further held:'In other words, what the applicant is entitled to is a reasonable opportunity of being heard on appeal and once that right is availed to him and he does not utilise him, he can no longer complain of being denied an opportunity of being heard on an appeal. He can only be heard on the reasons for him not utilising that opportunity.'

21. It is finally submitted that the Applicant is forum shopping in different Courts and as such the current application is frivolous, vexatious, bad in law, untenable and a gross abuse of this Court process should be dismissed with costs to the 1st Respondent.

Submissions By Interested Party 22. The Interested Party Mirriam Stephen – the Plaintiff in Machakos CMCC No 546 of 2018

23. filed submissions dated September 21, 2022 submitting that the Applicant herein is/was fully aware that the Insurance Company (UAP) could not settle the claim as the policy was avoided for reasons given in the judgment and cannot blame the Insurance Company by alleging that its failure to settle the claims has exposed it to immense prejudice or loss. The Applicant is therefore under an obligation to settle the claims personally.

24. That the Applicant herein cannot purport to separate itself from Leonard Munyao Kamba the 2nd Respondent who was its driver for the accident motor vehicle subject of these proceedings, therefore this application is an abuse of the Court process and should be struck out.

Determination 25. This Court is called upon to determine whether or not to grant stay of execution of the judgment of the test case or not.

26. The prerequisites of an order of stay of execution is prescribed by Order 42 CPR.In Kenya Power & Lighting Company Limited Vs Esther Wanjiru Wokabi,civil Appeal No 326 Of 2013 it was pointed out that:'To my mind, the courts discretion in deciding whether or not to grant stay of proceedings as sought in this application must be guided by any of the following three main principles;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.'

Unreasonable Delay. 27. The Memorandum of Appeal was filed with Application under Certificate of urgency in Civil Appeal E11 of 2020 filed on October 22, 2020. The Trial Court’s judgment was October 7, 2020. There was no delay in filing the appeal through memorandum of appeal.

Arguable Appeal 28. As to what constitutes an arguable appeal, the Court of Appeal in Nairobi Women’s Hospital vs Purity Kemunto [2018] eKLR:'To say that an appeal is arguable is another way of saying that it is not frivolous and that it raises a bona fide issue deserving full consideration by the Court. Even one bona fide issue will satisfy the requirement, for the law does not look for a multiplicity of arguable issues.'

29. The Court cannot anticipate without the full record of appeal an arguable appeal or not it is premature at this stage to confirm save to enforce a party’s legal right of appeal.

Substantial Loss 30. On the question of substantial loss, Odunga J in Republic Vs The Commissioner For Investigations And Enforcement 'Ex-Parte’ Wananchi Group Kenya Limited, Misc.Civil Application No 51 Of 2013, observed that:'(43) It is therefore not sufficient to merely state that the decretal sum is a lot of money and the applicant would suffer loss if the money is paid. In an application of this nature, the applicant should show the damages it would suffer if the order for stay is not granted since by granting stay would mean that the status quo should remain as it were before the judgement and that would be denying a successful litigant of the fruits of his judgement which should not be done if the applicant has not given to the court sufficient cause to enable it to exercise its discretion in granting the order of stay.'

31. Additionally, in James Wangalwa And Another Vs Agnes Naliaka Cheseto, Bungoma Hc Misc Application No 42 OF 2011, concerning substantial loss, it was observed that:d. 'The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal. This is what substantial loss would entail.’

32. The Applicant vide submissions filed on November 14, 2022 failed to address the Court on whether there will be substantial loss in the event of enforcement of the judgment. The submissions are detailed on the grounds of appeal which at this stage are premature. This Court is bound by pleadings an application for stay of execution pending appeal of the Trial Court’s judgment of October 7, 2022 of a test case.

33. This Court on perusal of the Court record confirms that stay of execution was sought from the Trial Court and vide 1st Respondent’s Replying affidavit that after the judgment of October 7, 2020, the Appellant filed appeal through memorandum of appeal of October 22, 2020. The High Court granted stay of execution in Civil Appeal E11 of 2020 on condition that ½ decretal amount to be paid to the Respondent and half to be deposited into a joint interest earning account within 45 days.

34. The Appellant failed to comply execution ensued and sought stay of execution from the Trial Court by Ruling of May 25, 2021 the stay of execution was denied.

35. By an application filed under Certificate of Urgency in Civil Appeal 27 of 2019 was filed dated October 25, 2021. The High Court granted stay of execution orders in High Court Civil Application E097 of 2022 for the test case and all judgments and decrees and all consequential orders in the other cases connected with the test case pending hearing of the application.

36. This Court notes with concern that since filing the appeal in 2020 no progress has been made to prosecute the appeal 2 years later the Appellant continues to seek stay of execution in different Courts.

Disposition 37. The Court therefore grants the following orders;1. The Stay of execution orders remain in force subject to compliance of the Ruling by the High Court in Civil Appeal E11 of 2020 within 90 days from today.2. The appeal to be set down for hearing and determination thereafter.3. FMD March 6, 2023.

DELIVERED SIGNED & DATED IN OPEN COURT IN MACHAKOS ON 8TH DECEMBER 2022 (VIRTUAL/PHYSICAL CONFERENCE).M.W. MUIGAIJUDGEIN THE PRESENCE OFMr. Kisigwa - For the ApplicantMrs Thiongo- for the RespondentPatrick - Court Assistant