[2023] KEHC 26942 (KLR)

Rockview Investments Limited v Mungei (Civil Appeal E078 of 2021) [2023] KEHC 26942 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26942 (KLR)

Republic of Kenya

In the High Court at Nyamira

Civil Appeal E078 of 2021

WA Okwany, J

December 14, 2023

Between

Rockview Investments Limited

Appellant

and

Tom Nyachae Mungei

Respondent

Ruling

1. This ruling is in respect to the application dated wherein the Applicant seeks, inter alia, orders for stay of execution of the judgment and decree of this Court issued on 27th July 2023 pending the hearing and determination of the Appeal.

2. The Application is supported by the affidavit of the Applicant’s Director Mr. Jackson Orina Otiso, and is premised on the following grounds: -1. That the Appellant/Applicant being aggrieved with the decision of the honourable Court intends to appeal to the Court of Appeal.2. That the Applicant has filed a Notice of Appeal to the Court of Appeal.3. That the Applicant has sufficient cause for seeking an order of stay in that: -a.The Applicant has an arguable appeal with high probability of success.b.If the said stay of execution is not granted, the Applicant’s appeal will be rendered nugatory and the Applicant will suffer irreparable damage as the amount decreed in favour of the Respondent is huge and will bring to a halt the operations of the Applicant.4. That unless the Application is granted, the Respondent threatens to levy execution against the Applicant.5. That the Applicant is ready, willing and able to deposit the titles of its prime property.6. That substantial loss will result to the Applicant unless the orders sought are granted.7. That this Application has been brought without unreasonable delay.8. That this Application ought to be granted in the interest of equity and justice.

3. The Respondent opposed the Application through his Replying Affidavit dated 2nd October 2023 where he avers that the Applicant has not established a sufficient cause to warrant the orders sought and has not furnished security as required. He states that he is entitled to enjoy the fruits of his judgment. He adds that the decree in question is a monetary decree which he is capable of refunding in the event that the applicant is succeeds on appeal.

4. The Application was canvassed by way of written submissions which I have considered. The main issue for determination is whether this court has the jurisdiction to entertain the application and depending on the answer to the first issue, the court will determine whether the applicant has made out a case for the granting of orders for stay of pending appeal.

Jurisdiction 5. It is trite that jurisdiction is everything without which a court cannot make one more step. (See Owners of Motor Vessel Lilian “s” vs Caltex Oil (Kenya) Ltd [1989] eKLR). The court derives its jurisdiction from either the Constitution or from statute or both. Jurisdiction is the authority with which a court of law acts. In Samuel Kamau Macharia & another vs. Kenya Commercial Bank Ltd & 2 others, Application No. 2 of 2011 the Supreme Court expressed itself in this regard thus: -“A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law…”

6. The principles governing the granting of stay of execution pending appeal are found under Order 42 Rule 6(2) of the Civil Procedure Rules 2010 which stipulates as follows: -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.

7. This matter first came before this court as an appeal from the trial court. In a judgment rendered on 27th July 2023, this Court pronounced itself on the appeal. The Applicant notified this Court that it had already filed a Notice of Appeal dated 28th July 2023 to the Court of Appeal. The question which this court has to grapple with is whether having rendered itself on the appeal and an earlier application for stay of execution pending the said appeal, it can consider another Application for stay pending the appeal before the Court of Appeal.

8. The answer to this question is to the negative, I find guidance in Patrick Kalaya Kulamba & Another vs. Philip Kamosu and Roda Ndanu Philip (Deceased) [2016] eKLR, where it was held: -“…..Thus, whether an application for stay pending appeal has been allowed or rejected in the lower court, the High Court “shall be at liberty….to consider” an application for stay made to it and to make any order it deems fit. The High Court in that capacity exercises what can be termed “original jurisdiction”. And from my reading of the rule, the jurisdiction is not dependent on whether or not a similar application had been made in the lower court, or the fate thereof….So long as an appeal from the substantive decision of the lower court has been lodged, an application under Order 42 Rule 6(1) of the Civil Procedure Rules can be entertained afresh in the High Court. I believe that was part of the distinction that the Court of Appeal was making in the Githunguri Case concerning the court’s original jurisdiction vis-à-vis the appellate jurisdiction and the innovation behind Rule 5 (2)(b) (as it is now). …………Similarly, the jurisdiction of the High Court in this case was invoked when the substantive appeal (itself a fresh pleading separate from the suit in the lower court) was filed……I would venture to add that the wording of Order 42 Rule 6(1) of the Civil Procedure Rules effectively grants the same jurisdiction to this court as an appellate court as Rule 5 (2)(b) does to the Court of Appeal: to entertain an application for stay whether or not the same has already been heard by the lower court and dismissed." (emphasis added).

9. My understanding of the above decision is that the High Court has jurisdiction to hear and determine an Application for stay of execution pending appeal where an aggrieved party in the subordinate court invokes the appellate jurisdiction of the High Court. This is because the High Court will be required to consider the arguability of the appeal in question in order to determine whether the substratum of the appeal may be rendered nugatory if the Application is not granted.

10. In the present case, however, this Court has already determined the appeal from the subordinate court. Having already rendered itself of the merits of the appeal, I find that it will not be proper for this court to once again consider an Application for stay pending appeal as that would be tantamount to sitting on own appeal against its own decision. I find that the appropriate forum to canvass the instant Application should be the Court of Appeal where the appeal currently lies. In other words, this Court is functus officio.

11. I am guided by the decision in Asige Keverenge and Anyanzwa Advocates vs. Kenya Revenue Authority & Another[2021]eKLR where it was held: -24. It is this Court’s finding that having granted stay of execution pending appeal and thereafter, heard and determined the appeal before the High Court on its merits and rendered a judgment dismissing the said appeal, all pertinent issues of fact and points of law have been fully canvassed and considered. As such, this Court conclusively dealt with the issue of whether the applicant’s appeal is an arguable one and concluded that it has no merit.25. Having discharged its duty on the appeal which was before it, this Court is functus officio.

12. It is my finding that this Court lacks jurisdiction having already heard and determined the merits of the Appeal. I must therefore down my tools.

13. Having found that this Court lacks jurisdiction, the second issue for determination is now moot. In sum, I find that this Application is misconceived and I therefore strike it out with costs to the Respondent.

14. Orders accordingly.

RULING DATED, SIGNED AND DELIVERED AT NYAMIRA VIRTUALLY VIA MICROSOFT TEAMS THIS 14TH DAY OF DECEMBER 2023. W. A. OKWANYJUDGE