[2023] KEHC 23215 (KLR)

Rundi & another v Njuki (Civil Appeal E023 of 2023) [2023] KEHC 23215 (KLR) (4 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23215 (KLR)

Republic of Kenya

In the High Court at Embu

Civil Appeal E023 of 2023

LM Njuguna, J

October 4, 2023

Between

Moses Njagi Rundi

1st Appellant

Henry Nyabuto Magati

2nd Appellant

and

Felisio Nyaga Njuki

Respondent

Ruling

1. The appellants/applicants have filed Notice of motion dated 16th June 2023 being supported by the grounds set out on the face of the application and the supporting affidavit. The orders sought are as follows:a.Spent;b.Spent;c.The applicants be granted stay of execution of the ruling delivered on 31st May 2023 pending hearing and determination of the appeal;d.The applicants be granted stay of proceedings in Embu CMCC no 7 of 2020, Embu CMCC no E46 of 2021, Embu CMCC no 27 of 2023, Embu CMCC no E28 of 2023 and Embu CMCC 85 of 2021 and other consequential matters to be filed involving the same subject matter which are part of the subject of this appeal and the ruling issued on 31st May 2023, pending hearing and determination of the appeal;e.Spent;f.Costs of the application abide the outcome of the appeal.

2. The application is made under Sections 1A, 1B, 3A, of the Civil Procedure Act, Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules 2010 and Article 159(2)(a) and (d) of the Constitution of Kenya 2010.

3. The appellants/applicants herein filed an application dated 23rd November 2023 in Embu CMCC no 85 of 2020, seeking orders that the court sets aside its proceedings of 06th October 2022 and 04th November 2022 that closed the plaintiff’s and defendants’ cases; That the court be pleased to reopen the plaintiff’s and defendant’s cases in light of new evidence discovered and for the purpose of enjoining a 3rd party. That the application referred to Embu CMCC no 65 of 2020 was determined and judgment in the matter delivered on 01st December 2021. The matter was reallocated to Hon. Lucy N. Ambasi as the previous court was going on retirement. She declined to allow the application and termed the same as an afterthought and unmerited.

4. In the present application, the applicants are seeking stay of execution of the above-cited ruling and also stay of proceedings in 5 other cases involving the same subject matter. The applicants are also in the process of filing an appeal against the impugned ruling.

5. This application was opposed through a replying affidavit sworn on 29th June 2023 wherein the respondent averred that the application is targeted at denying the respondent his right to have the suit in Embu CMCC no 85 of 2020 heard and determined expeditiously. That the applicants are in the habit of filing applications in a bid to delay and derail the course of justice. That the applicants have failed to demonstrate co-relation between this suit and the other suits alluded to, and is dragging those other suits to this one in order to hoodwink this court into granting orders of stay where they are not deserved. That the fact that the applicants intend to appeal does not automatically render the appeal meritorious and this application is a ploy to drag the respondent through endless litigation. That the application seeks to obstruct justice and to allow the application would be repugnant to justice. That the applicants have not demonstrated that they stand to suffer prejudice or irreparable loss if the orders are not granted but the respondent is bound to suffer immense prejudice if the application is allowed.

6. The court directed that the application be canvassed by way of written submissions. Only the respondent complied.

7. The respondent submitted that the application is bound by the principles of equity but the applicants have not done equity in order for them to come to equity. That the application is premised on Order 42 Rule 6 which does not allow the applicant to bring an appeal as of right but rather, should be brought with leave of court as required under Section 75 of the Civil Procedure Act. He relied on the cases of Peter Nyaga Muvake v Joseph Mutunga (2015) eKLR, Kakuta Maimai Hamisi v Peris Pesi Tobiko & 2 Others (2013) eKLR, Nyutu Agrovet Ltd v Airtel Networks Ltd (2015) eKLR and Isaac Mbugua Ngirachi v Stephen Gichobi Kaara (2021) eKLR. That the application is subject to Order 43 rule 1 of the Civil Procedure Rules and the applicants should have sought leave from the court granting the impugned orders of the court either orally or formally. That failure to seek leave is fatal to the application.

8. That the court should exercise its discretion judiciously while keeping in mind the parameters to be considered when a party is seeking stay of proceedings and execution. He relied on the cases of Teresiah Kimani v Githere Investments Ltd CA no 944 of 2003, Western College of Arts and Applied Sciences v Oranga & Others (1976-80) 1 KLR, Kanwal Sarjit Singh Dhiman v Keshavji Juvraj Shah (2008) eKLR and Co-operative Bank of Kenya Limited v banking Insurance &Finance Union (Kenya) (2015) eKLR. That the dismissal of the application in the lower court is intended to serve a purpose. That in this case, there is no order capable of being executed which can be stayed by this court per the decision in the case of Abubaker Mohamed Al amin v Firdaus Siwa Somo (2018) eKLR.

9. The issues for determination are:a.Whether the court should grant stay of execution of the ruling dated 31st May 2023 pending hearing and determination of the appeal; andb.Whether the court should grant stay of proceedings in Embu CMCC no 85 of 2020 and the related suits.

10. On the first issue of stay of execution, I have read the proceedings and the ruling which is the subject of this application. The same is brief and the trial court stated that “…this notice of motion is an afterthought and unmerited….”. The prayers sought were that the suit be reopened to allow for new evidence to be introduced in light of a determination in a related case. This ruling does not specifically bring out any orders expressly but rather, simply dismisses the application as a whole. Dismissal of an application leaves no orders to be extracted and executed. In my view, the consequence of this ruling was to basically redirect the parties back to the ongoing trial, which was part-heard at the point of the application, to its logical conclusion.

11. In the case of Raymond M. Omboga v Austine Pyan Maranga Kisii HCCA no 15 of 2010 the court held thus:“The order dismissing the application is in the nature of a negative order and is incapable of execution save, perhaps, for costs and such order is incapable of stay. Where there is no positive order made in favour of the respondent which is capable of execution, there can be no stay of execution of such an order...The applicant seeks to appeal against the order dismissing his application. This is not an order capable of being stayed because there is nothing that the applicant has lost. The refusal simply means that the applicant stays in the situation he was in before coming to court and therefore the issues of substantial loss that he is likely to suffer and or the appeal being rendered nugatory do not arise..."

12. Ordinarily, an order for stay pending appeal would be granted if the court is satisfied that the conditions in Order 42 Rule 6(2) have all been met at the same time. It must also be the case that if the court fails to grant the orders, the appellant/applicant will suffer irreparable loss and that the appeal will be rendered nugatory. This was discussed in the case of Ena Investment Limited v Benard Ochau Mose & 2 others [2022] eKLR where the court cited with approval, the case of Absalom Dova v Tarbo Transporters [2013] eKLR, where it was 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…” As already demonstrated in James Wangalwa & another v Agnes Naliaka Cheseto (2012) eKLR the three (3) conditions for granting stay of execution pending appeal must be met simultaneously. They are conjunctive and not disjunctive….”

13. Testing the conditions for stay of execution pending appeal, the application was brought about two weeks following the impugned judgment. There was certainly no delay in filing the application. On the next parameter, the applicant has failed to demonstrate that substantial loss would occur if the orders are not granted, neither can I find any risk of substantial loss given the circumstances of the case. This may be considered arguable, however, even if there is the risk of substantial loss, the loss can be compensated through damages as this is a tortuous claim. I need not venture into the last parameter, but for completeness, I shall state that for the requirement for security for due performance of the decree, I think this is quite distant from the orders sought as the “decree” would have been merely to dismiss the application.

14. On the issue of stay of proceedings in Embu CMCC no 7 of 2020, Embu CMCC no E46 of 2021, Embu CMCC no 27 of 2023, Embu CMCC no E28 of 2023 and Embu CMCC 85 of 2021 and other consequential matters to be filed involving the same subject matter, I take the view that the applicant has failed to demonstrate how these other cases involve a similar subject matter. I decry the fact that if the applicant knew of the existence of these part-heard (or otherwise) matters before the same court, they failed to alert the court for purposes of consolidating them for ease of adjudication. However, that is not the issue before me today and so I shall not digress.

15. I agree with the sentiments of the trial court, when faced with this very question (stay of proceedings in Embu CMCC no 7/20 and E046/21). Hon. H.N. Nyakweba declined to grant the said orders stating that they can only be granted in their respective suits. Therefore, as regards Embu CMCC no 7 of 2020 (where the parties are completely different from the ones herein) the identical issue came up through application dated 23rd November 2022 featuring the same parties and the court determined it. The ruling has not been appealed against, neither has it been set aside and is therefore res judicata.

16. Regarding Embu CMCC no E46 of 2021, Embu CMCC no 27 of 2023, Embu CMCC no E28 of 2023 and Embu CMCC 85 of 2021, the applicants claim that the subject matter is the same. I have looked at the files and the defendant is common in all the cases. Before a determination is made to stay proceedings in any case, the court must satisfy itself that the order will not be given haphazardly and at the expense of justice. According to the Halsbury’s Law of England, 4th Edition. Vol. 37 page 330 and 332,“The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceeding beyond all reasonable doubt ought not to be allowed to continue.”

17. The court in the case of Kenya Wildlife Service v James Mutembei (2019) eKLR held that: -“…Stay of proceeding should not be confused with stay of execution pending appeal. Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on right of access to justice, right to be heard without delay and overall, right to fair trial. Therefore, the test for stay of proceeding is high and stringent…”

18. In the case of Re Global Tours & Travel Ltd HCWC no 43 of 2000 the court held that:“…As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice .... the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of case, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously…”

19. The applicants have claimed that the subject matter in Embu CMCC no E46 of 2021, Embu CMCC no 27 of 2023, Embu CMCC no E28 of 2023 and Embu CMCC 85 of 2021 is the same. They have not produced any more proof that determination of any or all of these cases will cause irreparable loss that cannot be compensated through damages. In my view, the applicants have not satisfied the requirements as the case should be to enable granting of the orders.

20. I am not oblivious of the role of the courts in administration of justice. This is the core business of this court as I have held before in the case of Kamuti v Kariuki (Miscellaneous Civil Cause E001 of 2023) (2023):“The ultimate goal and purpose of the justice system is to hear and determine disputes fully. It follows that no person who has approached the court seeking an opportunity to ventilate their grievances fully should be locked out unless for a good reason.”

21. Accordingly, I find that the application lacks merit and is hereby dismissed with costs to the respondent.

22. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 4TH DAY OF OCTOBER, 2023. L. NJUGUNAJUDGE.................for the Appellants/Applicants....................................for the Respondent