[2023] KEHC 24457 (KLR)

Rift Cars Limited v Cheruiyot & 2 others (Civil Appeal E012 of 2023) [2023] KEHC 24457 (KLR) (16 October 2023) (Ruling)

Neutral citation: [2023] KEHC 24457 (KLR)

Republic of Kenya

In the High Court at Bomet

Civil Appeal E012 of 2023

RL Korir, J

October 16, 2023

Between

Rift Cars Limited

Applicant

and

Aron Cheruiyot

1st Respondent

Lily Ngetich

2nd Respondent

M.S Kimu Auctioneers

3rd Respondent

Ruling

1. The Applicant filed a Notice of Motion Application dated 24th March 2023 which sought the following Orders:-i.Spent.ii.Spent.iii.That the Ruling dated, delivered and signed at Bomet on 15th march 2023 by Hon. K. Kibelion be set aside and leave be granted to the Appellant to defend the suit on its merit.iv.That the interlocutory Judgment entered against the Appellant/Applicant on 31st August 2022 together with all consequential orders be set aside and leave be granted to the Appellant to defend the suit on its merit.v.That upon grant of prayer 3, leave be granted to the Appellant/Applicant to file their Defence together with list of documents, list of witnesses and witness statements within 14 days and in the alternative, the annexed draft Defence be deemed filed upon payment of the filing fees by the Appellant/Applicant.vi.That the costs of this Application be borne by the Respondent.

2. This court gave an order on 29th March 2023 to the effect that the Ruling dated, delivered and signed at Bomet on the 15th March 2023 by Hon. K. Kibelion was set aside in the interim and leave was granted to the Appellant to defend the suit on its merit.

3. This prompted the Applicant to file a Certificate of Urgency dated 3rd April 2023 with the same Notice of Motion Application dated 24th March 2023. The Applicant stated that the matter was urgent as the court had not issued the order for stay of execution and that they were under the threat of execution by the 2nd Respondent.

4. On 5th April 2023, Mohochi J. granted the Applicant the order for stay of execution pending the hearing and determination of this Application.

5. There was a slip up by this court when it issued an interim order which however had been crafted by the Applicant as a final order since the same was the subject of the Applicant’s appeal. The order as granted was final in nature and had the effect of determining the Appeal without hearing the said Appeal. Clearly, an interim order could not at the same time be a final order.

6. This court is empowered under the Civil Procedure Code to correct clerical, arithmetical mistakes or errors in Judgements, Decrees or Orders. Section 99 of the Civil Procedure Code provides that:-Clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the court either of its own motion or on the application of any of the parties.

7. Section 100 of the Civil Procedure Rules provides that:-The court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceeding.

8. The law is very clear that a court can on its own motion correct an error on a Judgement, Decree or Order which was as a result of an accidental slip. However care must be taken to ensure that in implementing such a correction, the substance of the Judgment or Order is not altered. The intention of the correction of the slip is to give effect to the actual intention of the Judge. In Republic v Attorney General & 15 others, Ex-Parte Kenya Seed Company Limited & 5 others (2010) eKLR, the Court of Appeal stated that:-“The starting point is the construction of section 99 of the CPA which we must now reproduce:“99. Clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the court either of its own motion or on the application of any of the parties.”It is a codification of the common law doctrine dubbed “the Slip Rule”, the history and application of which has a wealth of authorities both locally and from common law jurisdictions. It is a rule that applies as part of the inherent jurisdiction of the court, which would otherwise become functus officio upon issuing a judgment or order, to grant the power to reopen the case but only for the limited purposes stated in the section.Some of the applications of the rule are fairly obvious and common place and are easily discernible like clerical errors, arithmetical mistakes, calculations of interest, wrong figures or dates. Each case will of course depend on its own facts, but the rule will also apply where the correction of the slip is to give effect to the actual intention of the Judge and/or ensure that the judgment/order does not have a consequence which the Judge intended to avoid adjudicating on.The Australian Civil Procedure has provisions in pari materia with section 99. As was stated in the case of Newmont Yandal Operations Pty Ltd v The J. Aron Corp & The Goldman Sachs Group Inc [2007] 70 NSWLR 411, the inherent jurisdiction extends to correcting a duly entered judgment where the orders do not truly represent what the court intended.Nearer home the predecessor of this Court in Lakhamshi Brothers Ltd v R. Raja & Sons [1966] EA 313 endorsed that application of the rule, that is, to give effect to the intention of the court when it gave its judgment or to give effect to what clearly would have been the intention of the court had the matter not inadvertently been omitted. Spry JA in Raniga Case (supra) also stated as follows: -where it is fully satisfied that it is giving effect to the intention of the court at the time when judgment was given or, in the case of a matter which was overlooked, where it is satisfied, beyond doubt, as to the order which it would have made had the matter been brought to its attention.” “A court will, of course, only apply the slip rule

9. Similarly in Thomas Owen Ondiek & another vs National Bank of Kenya Ltd & another (2021) eKLR, the Court of Appeal held that:-“It is axiomatic that the jurisdiction of the Court under the slip rule is circumscribed and limited to correction of errors arising from accidental slip or omission, so as to give effect to the manifest intention of the Court when it made its decision…………”

10. The intention of the court on 29th March 2023 was to grant the Applicant the interim orders for stay of execution (prayer 2) and not to set aside the impugned Ruling (prayer 3) which order could only be made after the Appeal was heard and determined. For reasons set out above, the order dated 29th March 2023 is hereby vacated.

The Application 11. The Notice of Motion Application dated 24th March 2023 was brought under the provisions of Article 159 of the Constitution of Kenya. It was based on the grounds on the face of the Application and further by the Supporting Affidavit sworn by Isaac Towett on 24th March 2023.

The Applicant’s Case. 12. The Applicant stated that the trial court delivered an ex-parte Judgment on 31st August 2022 where it awarded the 2nd Respondent Kshs 2,897,671. 67/=. That the 2nd Respondent had obtained a Decree and threatened it with execution.

13. It was the Applicant’s case that the auctioneers had already issued a Proclamation Notice and Fee Note dated 1st December 2022 for its goods and if a sale occured before the Application was heard then it would suffer irreparable loss, damage and prejudice.

14. The Applicant stated that the Application had been made without undue delay and that the Respondents would not be prejudiced.

15. I have noted that the Applicant erroneously and majorly focused his grounds in its supporting Affidavit on the merits of the Appeal.

The Response 16. The 2nd Respondent responded to the Application through the Replying Affidavit dated 19th April 2023. She stated that the Application was fatally defective as there existed another Application filed by the Applicant which sought similar prayers. That the present Application was sub judice and that the Applicant was estopped from seeking similar orders.

17. It was the 2nd Respondent’s case that the decision to file the two Applications was full of malafides and was only aimed at using the court process to deny her the opportunity to enjoy the fruits of her Judgment.

18. The 2nd Respondent stated that the Judgment was partly satisfied by the 1st Respondent’s insurer. She further stated that prayer 2 of the Application had been overtaken by events as the proceedings had been concluded and Judgment delivered.

19. It was the 2nd Respondent’s case that allowing prayers 3, 4 and 5 of the Application would be tantamount to allowing the Appeal without the substantive Appeal being heard and determined on its own merits.

20. The 2nd Respondent stated that the Applicant abused the court process by filing two applications instead of reviewing the court order after it had realised that there was an oversight by this court in awarding prayer 3 of the Application.

21. It was the 2nd Respondent’s case that should this court allow the Application then it allows it on the condition that the entire decretal amount be deposited in court or in a joint interest earning account as security pending the hearing and determination of the Appeal.

22. On 19th April 2023, I directed that the Application be canvassed by way of written submissions.

Applicant’s written submissions. 23. The Applicant submitted that its Appeal had a high chance and if the order for stay was not granted and the execution is carried out then the Appeal would be rendered nugatory.

24. In regards to substantial loss, the Applicant submitted that decretal sum of Kshs 2,897,671. 67/= was substantial and if they were required to pay the amount it would have dire consequences on its operations and would expose it to a potential suit because the subject motor vehicle belonged to another person. It relied on Daniel Chebutul Rotich & 2 others vs Emirates Airlines Civil Case No. 368 of 2001.

25. The Applicant submitted that the Application was timeously filed.

26. It was the Applicant’s submission that the power to grant stay was discretionary. It urged the court to take into account that the purpose of the stay of execution was to preserve the subject matter in dispute and it relied on Consolidated Marine vs Nampijja & another Civil Appeal No. 93 of 1989.

27. The Applicant submitted that if the stay order is not granted, it will affect its ability to defend their suit. That if stay is denied and the Appeal succeeds, then it would suffer substantial loss as the Respondents would dispose of the subject motor vehicle by selling it to third parties.

28. It was the Applicant’s submission that this court should strike a balance between its interests and that of the 2nd Respondent as the successful party.

29. The Respondents did not file any written submissions.

30. I have read through and carefully considered the Notice of Motion Application dated 24th March 2023, the Replying Affidavit dated 19th April 2023, the Applicant’s written submissions dated 27th April 2023 and two issues for my determination:-i.Whether the Application was sub judiceii.Whether the Applicant had satisfied the requirements for the grant of the Order of Stay of Execution.

Whether the Application was sub judice 31. The 2nd Respondent stated that the present Application was sub judice because the Applicant had filed a similar Application dated 3rd April 2023 that sought similar prayers with the instant Application.

32. Section 6 of the Civil Procedure Act states that:-No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.

33. In Kinatwa Co-operative Savings & Credit Society Limited vs Kinatwa Prestige Ltd (2021) eKLR, Limo J. persuasively held that:-“The doctrine of res sub-judice prevents a court from proceeding with the trial of any suit in which the matter in issue is directly and substantially the same with the previously instituted suit between the same parties pending before same or another court with jurisdiction to determine it”.

34. I have gone through the record and I have noted that the present Application dated 24th March 2023 was filed on 28th March 2023 and the orders it sought were captured earlier on in this Ruling. The 2nd Application that the 2nd Respondent referred to was a Certificate of Urgency dated 3rd April 2023. The Certificate of Urgency was accompanied by the same Notice of Motion Application dated 24th March 2023. The Certificate of Urgency was as a result of this court’s omission to grant the prayer for interim stay of execution in the first instance, a situation that this Ruling has dealt with above.

35. Suffice to say, a Certificate of Urgency is not an Application. Therefore the only Application that is for consideration by this court is the present Application dated 24th March 2023, therefore the issue of sub judice does not arise.

Whether the Applicant had satisfied the requirements for the grant of the Order of Stay of Execution. 36. The principles that relate to Stay of Execution Orders are well settled. Order 42 Rule 6 of the Civil Procedure Rules stipulates:-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 orders 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; andb)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”.

37. Thus under Order 42 Rule 6(2) of the Civil Procedure Rules, the Applicant should satisfy the court that:-i.Substantial loss may result to it unless the order is granted.ii.That the Application has been made without unreasonable delay.iii.The Applicant gives such security as the court orders for the due performance of such Decree or order as may ultimately be binding to them.

38. Regarding the issue of substantial loss, the Court of Appeal in the case of Kenya Shell Limited vs Benjamin Karuga Kibiru & another (1986) eKLR, held that:-“Substantial loss in its various forms, is the cornerstone of both jurisdictions for granting stay. That is what has to be prevented. Therefore without this evidence it is difficult to see why the respondents should be kept out of their money.”

39. In the persuasive case of James Wangalwa & Another vs Agnes Naliaka Cheseto (2012) eKLR, Gikonyo J held that:“No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. 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 ... the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”

40. The Applicant submitted that it would suffer substantial loss if it were made to pay the decretal amount which was substantial. That it would have dire consequences on its operations.

41. The Applicant did not adduce any other evidence or set out factual circumstances to demonstrate that it would suffer substantial loss if the execution was not stayed. In the case of Kenya Shell Limited (supra) it was held:-“………….There was no evidence of substantial loss to the Applicant, either in the matter of paying the damages awarded which would cause difficulty to the Applicant itself………..It is usually a good rule to see if Order XLI Rule 4 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the Applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. . . .”

42. Based on the evidence before me, it is my finding that the reason advanced by the Applicant that its business would suffer substantial loss was insufficient. The Applicant had not proved the substantial loss that it would suffer.

43. On the issue of unreasonable delay, In Republic vs Attorney General & Another, Baps International Limited (Interested Party) Ex parte (2020) eKLR, Nyamweya J. (as she then was) stated:-“The concept of what is reasonable time is flexible, and will depend on the circumstances of a case, as held in Law Society of Kenya v Attorney General &2 others [2016] eKLR. Relevant circumstance include the nature of the matter to which the inaction relates, any mitigating circumstances on the part of the decision make, and adverse consequences of delay, and the need to ensure fairness………….”

44. Ruling in the trial court was delivered on 15th March 2023. The present Application for stay of execution was filed on 28th March 2023. It is my finding that the two weeks difference represents a reasonable timeline within which this Application was filed.

45. Regarding security for the performance of the Decree, Gikonyo J in the persuasive case of Arun C Sharma vs. Ashana Raikundalia t/a Raikundalia & Co. Advocates & 2 Others (2014) eKLR held that: -“The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. It is not to punish the judgment debtor.Civil process is quite different because in civil process the judgment is like a debt hence the applicants become and are judgment debtors in relation to the respondent. That is why any security given under Order 42 rule 6 of the Civil Procedure Rules acts as security for due performance of such decree or order as may ultimately be binding on the applicants. I presume the security must be one which can serve that purpose.”

46. Similarly in Gianfranco Manenthi & Another vs Africa merchant Assurance Co. Ltd (2019) eKLR Nyakundi J. observed:-“The applicant must show and meet the condition of payment of security for due performance of the decree. Under this condition, a party who seeks the right of appeal from a money decree of the lower court for an order of stay must satisfy this condition on security. In this regard, the security for due performance of the decree under Order 42 Rule 6(1) of the Civil Procedure Rules, it is trite that the winner of litigation should not be denied the opportunity to execute the decree in order to enjoy the fruits of his judgment in case the appeal falls.Further Order 42 should be seen from the point of view that a debt is already owed and due for payment to the successful litigant in a litigation before a court which has delivered the matter in his favour. This is therefore to provide a situation for the court that if the appellant fails to succeed on appeal there could be no return to status quo on the part of the plaintiff to initiate execution proceedings where the judgment involves a money decree. The court would order for the release of the deposited decretal amount to the respondent in the appeal….Thus, the objective of the legal provisions on security was never intended to fetter the right of appeal. It was also put in place to ensure that courts do not assist litigants to delay execution of decrees through filing vexatious and frivolous appeals. In any event, the issue of deposit of security for due performance of decree is not a matter of willingness by the applicant but for the court to determine……..”

47. The Applicant did not indicate its willingness to deposit security for the performance of the Decree. The 2nd Respondent on the other hand stated that this court should order that the full decretal amount be deposited in court or in a joint interest earning account. I however note that in the 2nd Respondent’s Replying Affidavit dated 19th April 2023, she stated that the Judgment had been partly satisfied by the 1st Respondent’s insurer. As such, I am not persuaded to order a deposit of the entire decretal sum.

48. It is salient to note that the power of the court in deciding whether or not to grant a stay of execution is discretionary. In the case of Samvir Trustee Limited vs Guardian Bank Limited (UR), Warsame J (as he then was), held that:-“The Court in considering whether to grant or refuse an application for stay is empowered to see whether there exist any special circumstances which can sway the discretion of the court in a particular manner. But the yardstick is for the court to balance or weigh the scales of justice by ensuring that an appeal is not rendered nugatory while at the same time ensuring that a successful party is not impeded from the enjoyment of the fruits of his judgement. It is a fundamental factor to bear in mind that, a successful party is prima facie entitled to the fruits of his judgement; hence the consequence of a judgement is that it has defined the rights of a party with definitive conclusion”.

49. I have noted that the Applicant has filed an Appeal to challenge the decision by the trial court delivered on 15th March 2023 and it was apprehensive that if the stay order was not granted then it would suffer greatly. On the other hand, the 2nd Respondent was the decree holder who should be enjoying the fruits of the Judgment. This Court while balancing these two interests, must satisfy itself that that no party would suffer undue prejudice.

50. This principle was enunciated in the decision of Gikonyo J. in Absalom Dova vs. Tarbo Transporters (2013) eKLR, where he stated: -“The discretionary relief of stay of execution pending appeal is designed on the basis that no one would be worse off by virtue of an order of the court; as such order does not introduce any disadvantage, but administers the justice that the case deserves. This is in recognition that both parties have rights; the Appellant to his appeal which includes the prospects that the appeal will not be rendered nugatory; and the decree holder to the decree which includes full benefits under the decree. The court in balancing the two competing rights focuses on their reconciliation…”

51. Even though the Applicant has not satisfied all the three conditions for the grant of stay of execution, it is my finding that the justice of the case demands that his right of appeal was not fettered. The Court of Appeal in Judicial Service Commission & Secretary, Judicial Service Commission v Kalpana H. Rawal (2015) eKLR held that: -“………..a right to appeal is part of a right to fair trial…..”

52. In the end, having considered the pleadings and evidence before me, I grant stay of execution to the Applicant on the following conditions: -i.The Applicant shall deposit in court as security for the performance of the Decree, one third of the decretal amount being Kshs965,890. 55/= within 30 days of this Ruling.ii.Failure by the Applicant to deposit the amount as stipulated in (I) above within the stipulated time will void the stay of execution.iii.The Applicant shall file the Record of Appeal and set down the Appeal for directions within 45 days of today.

RULING DELIVERED, DATED AND SIGNED AT BOMET THIS 16TH DAY OF OCTOBER , 2023. ..........................R. LAGAT-KORIRJUDGERuling delivered in the absence of the parties, and Siele (Court Assistant)