[2022] KEHC 12509 (KLR)

RPT v ICT (Civil Appeal 4 of 2019) [2022] KEHC 12509 (KLR) (8 June 2022) (Ruling)

Neutral citation: [2022] KEHC 12509 (KLR)

Republic of Kenya

In the High Court at Kapenguria

Civil Appeal 4 of 2019

WK Korir, J

June 8, 2022

Between

RPT

Applicant

and

ICT

Respondent

Ruling

1. This ruling is in respect of the notice of motion application dated 20th September, 2021 brought by the Applicant, Nobert Poghisho Tomtom, under sections 1A, 1B, 3, 3A and 63 of the Civil Procedure Act, Cap. 21 (CPA) and Order 42 Rule 6 of the Civil Procedure Rules, 2010 (CPR). The motion is supported by an affidavit sworn by the Applicant on the date of the application and a further affidavit sworn on 1st March, 2022. The main prayer in the application is for an order of stay of the execution of the warrant of arrest issued against the Applicant on 14th September, 2021 in Kapenguria PM Divorce Cause No. 1 of 2017. When the matter came up for hearing on 23rd September, 2021, the parties consented to the stay of the warrant of arrest pending inter partes hearing and determination of the application.

2. The Respondent, ICT, filed grounds of opposition dated 23rd September, 2021 in response to the application.

3. From the pleadings, it is disclosed that a warrant of arrest was issued against the Applicant on 14th September, 2021 in execution of the judgment delivered in Kapenguria PMC Divorce No. 1 of 2017. The Applicant avers that he has preferred an appeal against the trial court’s judgment through Kapenguria High Court Appeal No. 4 of 2019. The Applicant deposes that his appeal, which is arguable with high chances of success, may be rendered nugatory and moot should the warrant of arrest be executed. The Applicant further states that his application has been made timeously and without delay, and the Respondent will not be prejudiced should the order be granted. According to the Applicant, he is willing to deposit security as set by the Court.

4. The Respondent opposes the application on the grounds that this Court lacks jurisdiction to stay execution of the warrant of arrest issued on 14th September, 2021 against the Applicant as no appeal has been lodged against that order and that the appeal herein relates to the Applicant’s application for review of the alimony award; that this Court has no jurisdiction to make an order for stay of execution against a negative order such as the one dismissing the Applicant’s application for review; that the Applicant did not appeal against the divorce decree granting alimony and thus he cannot apply for a stay of that decree; that the Applicant has not proved that he will suffer loss; that this application has been brought after unnecessary delay; and, that no sufficient cause has been demonstrated to warrant the grant of stay. The Respondent therefore urged this Court to dismiss the application with costs.

5. In his submissions dated 1st March 2022, the Applicant contends that the main issue is whether he has satisfied the conditions set in Order 42 Rule 6(2) of the CPR to warrant grant of stay of execution. The Applicant submits that he has demonstrated that should the stay order be declined he is bound to suffer substantial loss. His case is that since he has filed an appeal against the ruling dated 12th September, 2019 which upheld the judgment and decree which the Respondent sought to enforce, execution of that decree would render the appeal moot. He relied on the case of James Wangalwa & another v Agnes Naliaka Chesoto [2012] eKLR to submit that an order of stay of execution prevents substantial loss by preserving the status quo so as not render the appeal nugatory. Additionally, the Applicant states that he is a civil servant and jailing him will render him jobless.

6. The Applicant submits that his application was made without undue delay on 20th September, 2021 only six days after the issuance of the order for arrest on 14th September, 2021.

7. According to the Applicant, his offer to provide security demonstrates that his application is genuine and this Court should be persuaded to grant him the order of stay. In support of this statement he cites the case ofFocin Motorcycle Co. Ltd v Ann Wambu Wangu & another [2018] eKLR where it was held that an applicant’s offer to provide security is a show of good faith that the application for stay is not sought merely to deny the respondent the fruits of the judgment.

8. In concluding his submissions, the Applicant urged this Court to find that he has met the conditions set in Butt v Rent Restriction Tribunal [1979] eKLR for granting an order of stay of execution of decree pending appeal.

9. On her part, the Respondent through submissions dated 26th October, 2021 contends that this Court lacks the jurisdiction to issue stay orders against the warrant of arrest issued by the trial court on 14th September, 2021 because the Applicant is yet to file an appeal against that order. The Respondent relies on the case of Ujagar Singh v Runda Coffee Estates Ltd, as cited in Benson Ngugi Muiruri v Kenya National Capital Corporation Ltd, HCCC No. 1981 of 1993, to submit that an applicant must first file an appeal before an application for stay can be considered by the court. Additionally, the Respondent submits that the Applicant’s appeal concerns his application for review and not the divorce decree granting alimony or the warrant of arrest. The Respondent further relied on the case of Nguruman Limited v Shompole Group Ranch & another [2014] eKLR to submit that as long as there is no appeal on record, an appellate court must down its tools and strike out any application for stay of execution for lack of jurisdiction.

10. The Respondent also submits that this Court has no jurisdiction to issue stay orders against a negative order such as the one dismissing the Applicant’s application for review. On this, the Respondent relies on the case of Kanwal Sarjit Singh Dhiman v Keshavji Juvraj Shah [2008] eKLR where the Court held that negative orders are incapable of execution and cannot therefore be stayed. Similarly, the Respondent relies on the case of Catherine Njeri Maranga v Sarah Chege & another [2017] eKLR where the Court in refusing to grant stay orders held that in an application for stay of negative orders, the issue of substantial loss or the appeal being rendered nugatory does not arise.

11. On her claim that the application was delayed, the Respondent invited the Court to refer to the case of Jaber Mohsen Ali & another v Priscillah Boit & another [2014] eKLR and find that there was inordinate delay on the part of the Applicant in filing the application. She asked the Court to rely on the decision in Hon. Attorney General v LSK & another, CACA No. 133 of 2011 and reach the conclusion that the Applicant has not demonstrated sufficient cause to warrant stay of execution. The Respondent consequently urges this Court to dismiss the application.

12. Upon perusal of the pleadings and submissions of the parties, the issue that emerges for the determination of this Court is whether the Applicant has made out a case for grant of an order staying the warrant of arrest issued against him by the trial court. In determining the issue, the starting point is to decide whether there is a proper application before this Court. The instant application is for stay orders of the warrant of arrest issued against the Applicant by the trial court on 14th September, 2021. On the other hand, the appeal dated 7th November, 2019 under which this application is brought is against review orders issued on 12th October, 2019. It is therefore a fact that while the application herein is in respect to the warrant of arrest issued on 14th September, 2021, the appeal on record is against the decision of the trial court delivered on 12th October, 2019 allowing the Respondent’s application for the amendment of the decree and declining the Applicant’s application for review of the trial court’s judgement.

13. The Respondent’s position is that there is no appeal against the order sought to be stayed and an order of stay can therefore not issue in the circumstances. The Applicant did not address this issue. In essence, the jurisdiction of this Court to hear and determine this application has been challenged by the Respondent.

14. A perusal of the proceedings before the trial court shows that the judgement in the divorce cause was delivered on 17th November, 2017. On 8th October, 2019, S. K. Mutai, Principal Magistrate delivered a ruling dated 12th September, 2019 in respect of two applications. In the first application dated 25th April, 2019, the Respondent herein had sought to have the decree extracted on 17th July, 2018 amended to embody the exact terms of the judgement dated 17th November, 2017. Specifically, the Respondent wanted the decree amended to read as follows:(a)That the marriage between the parties herein is irretrievably broken down and the court grants divorce;(b)That the court will not interfere with the current status quo whereby the respondent pays school fees for one child while the petitioner pays for the other;(c)That the respondent shall be paying the petitioner the sum of Kshs. 10,000/- every month being alimony.

15. The other application dated 2nd May, 2019 was brought by the Applicant herein. He sought two main orders as follows:(a)That this Honourable Court be pleased to grant stay of execution of the judgment and decree pending the hearing and determination of this application;(b)That this court be pleased to review its judgement delivered on 17/11/2017 and remove the alimony awarded by court.

16. In his ruling, S. K. Mutai, PM allowed the Respondent’s application and dismissed that of the Applicant. The Applicant immediately thereafter filed the memorandum of appeal dated 22nd October, 2019 in which he sought the setting aside of the order of alimony issued in favour of the Respondent. Nothing of substance took place until 14th September, 2021 when the Respondent sought the committal of the Applicant to civil jail for failing to pay the decretal amount that allegedly stood at Kshs. 614,900/=. The application was allowed and a warrant of arrest issued against the Applicant. That is what gave rise to the instant application.

17. From the history given above, it is clear that the warrant of arrest issued on 14th September, 2021 was in execution of the amended decree issued after the trial court in the ruling dated 12th September, 2019 and delivered on 8th October, 2019 allowed the Respondent’s request for the amendment of the original decree. The Respondent’s claim that there is no appeal against the warrant of arrest order which the Applicant seeks to stay is correct. However, the amended decree which was intended to be executed has already been appealed by the Applicant. The Applicant was not expected to file another appeal against the warrant of arrest because he already has an appeal against the amended decree which was being executed through the warrant of arrest. I therefore find no merit in the Respondent’s claim that the Applicant’s application is defective.

18. As for the Respondent’s claim that the Applicant seeks to stay a negative order and an order of stay cannot issue against a negative order, I only need to observe that in the memorandum of appeal dated 22nd October, 2019 the Applicant is seeking to overturn the order of alimony issued in favour of the Respondent. It must be appreciated that the ruling delivered on 8th October, 2019 was in respect of two applications. In one of the applications the Applicant sought a review of the judgement in regard to the alimony order. This application was dismissed. The other application was that of the Respondent which sought the amendment of the decree. That application was allowed. From the memorandum of appeal, it is clear that the Applicant seeks to overturn the part of the decision which allowed the Respondent’s application to amend the original decree. The claim that the Applicant seeks to stay a negative order does not therefore arise in those circumstances.

19. I now turn to the question as to whether the Applicant deserves an order of stay. In Butt v Rent Restriction Tribunal [1982] KLR 417, the Court of Appeal highlighted the conditions for grant of stay of execution as follows:“1. The power of the court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.2. The general principle in granting or refusing a stay is; if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should that appeal court reverse the judge’s discretion.3. A judge should not refuse a stay if there are good grounds for granting it merely because in his opinion, a better remedy may become available to the applicant at the end of the proceedings.4. The court in exercising its discretion whether to grant [or] refuse an application for stay will consider the special circumstances of the case and unique requirements. The special circumstances in this case were that there was a large amount of rent in dispute and the appellant had an undoubted right of appeal.5. The court in exercising its powers under Order XLI rule 4(2)(b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security for costs as ordered will cause the order for stay of execution to lapse.”

20. I have looked at the Applicant’s memorandum of appeal against the ruling that allowed the amendment of the original decree. I have also looked at the judgement dated 17th November, 2017 from which the original decree that was sought to be amended was extracted. In that judgement it is clearly stated that the “respondent shall be paying the respondent the sum of Kshs 10,000/= every month, being alimony.” This is what the Respondent sought to be put in the new decree when she applied for the amendment of the original decree. The Applicant’s attempt to review the portion of the judgement that awarded the alimony to the Respondent was rejected by the trial magistrate who at the same time allowed the amendment of the original decree to include the alimony of Kshs. 10,000/= per month.

21. In the trial court’s judgement, it was indicated that the alimony would go towards the upkeep of the children. It appears the Applicant has not paid a single coin of this amount from the time the judgement was delivered in 2017. He never appealed against that judgement and only moved the trial court for review of the judgement after the Respondent filed the application to have the original decree amended. This gives the impression that he was satisfied with the judgement. He cannot now turn around to say he will suffer irreparable loss if the judgement is implemented.

22. The children are entitled to upkeep even as the Applicant seeks to overturn the award of alimony. In the circumstances of this case, greater harm will occur if the children are denied upkeep than if the Applicant is not granted stay of execution. In the circumstances, I find that the Applicant has not made a case for grant of stay pending appeal. His application dated 20th September, 2021 is therefore found to be without merit and dismissed. As for costs, I direct that each party shall meet own costs of the application.

DATED, SIGNED AND DELIVERED AT KAPENGURIA THIS 8TH DAY OF JUNE, 2022. W. KORIR,JUDGE OF THE HIGH COURT