[2023] KEHC 27602 (KLR)

Saad Swaleh Mbarak t/a Swaleh Trading v Jama (Civil Appeal E071 of 2022) [2023] KEHC 27602 (KLR) (17 November 2023) (Ruling)

Neutral citation: [2023] KEHC 27602 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal E071 of 2022

F Wangari, J

November 17, 2023

Between

Saad Swaleh Mbarak t/a Swaleh Trading

Applicant

and

Salim Ali Jama

Respondent

Ruling

1. This ruling relates to an application dated 16th June, 2022 which sought for the following orders: -a.That this application be certified urgent, service thereof be dispensed with and be heard ex-parte in the first instance.b.That this Honourable Court be pleased to stay execution of the orders of the Honourable Magistrates Court made on the 4th May, 2022 pending the hearing and determination of this application;c.That this Honourable Court be pleased to stay execution of the orders of the Honourable Magistrates Court made on the 4th May, 2022 pending the hearing and determination of the appeal to the High Court against the decision of the Chief Magistrates Court at Mombasa on 4th May, 2022;d.That this Honourable Court be pleased to issue an order staying the accrual of interest pending the hearing of the said appeal;e.That this Honourable Court be pleased to make such order as the interest of justice may demand in the circumstances;f.That costs of this application be provided for.

2. The application was resisted. The Respondent filed a replying affidavit dated 22nd June, 2022 on even date. I note that on 23rd June, 2022 when the matter came up for directions, prayer 2 of the application was granted. It his response, the Respondent contended that the Applicant was simply out to delay his realization of the fruits of his judgement. It was further argued that nowhere in the application did the Applicant indicate his willingness to deposit the decretal sum. He therefore sought for the dismissal of the application.

3. The application was canvassed by way of written submissions wherein both parties complied by filing detailed submissions and cited various authorities in support of their rival positions. The Applicant’s submissions are dated 20th September, 2022 and filed on even date. The Respondent’s submissions are dated 9th November, 2022 and filed on the same day.

Analysis and Determination 4. I have considered the application, response, submissions together with the authorities relied upon by the parties as well as the law and in my view, the following are the issues for determination: -a.Whether the Law Firm of Wangila & Wangila Advocates are properly on record;b.If the answer to (b) above is in the affirmative, whether the Applicant has made out a case for the grant of interim stay of execution pending hearing and determination of the appeal;c.Who bears the costs of the application?

5. On the first issue, I note that the issue of the Applicant’s Firm of Advocates lacking audience was only raised during submissions. I have reviewed the sixteen paragraphs making up the Respondent’s response and I have no doubt in my mind that this issue was never raised in the affidavit evidence.

6. The provisions of Order 9 Rule 9 of the Civil Procedure Rules clearly provide the procedure to be adopted where there is change of advocates after judgement has been delivered. This provision has been subject of various judicial considerations and it appears there are two schools of thought. One appears to adopt a strict application where failure to seek leave to come on record after judgement is considered fatal.

7. This appears to have been the position in John Langat v Kipkemoi Terer & 2 others [2013] eKLR and Florence Hare Mkaha v Pani Tawakal Mini Coach & Another [2014] eKLR.

8. The second group appear to favour the application of sections 1A, 1B and 3A of the Civil Procedure Act and article 159 (2) (d) of the Constitution. In the second cluster, strict adherence to the rules of procedure provided it does not lead to a miscarriage of justice ought not to be elevated.

9. This found favour in the case of Ngitimbe Hudson Nyanumba v Thomas Ongondo [2018] eKLR where Mutungi, J disallowed an application to strike out documents filed by Counsel who was said not to be properly on record having come in after judgement had been delivered. This court is inclined towards the second school of thought.

10. Be that as it may, I have pointed out above that the issue of Order 9 Rule 9 was only raised during submissions. No evidence was tendered in the form of affidavit or otherwise. It is trite that submissions do not take the place of evidence.

11. The Court of Appeal in Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another [2014] eKLR held as follows: -“…Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed, there are many cases decided without hearing submissions but based only on evidence presented…”

12. I find no merit on the invocation of the provisions of Order 9 Rule 9 of the Civil Procedure Rules on submissions stage and I thus proceed to consider the second issue on whether a case for stay of execution had been made out.

13. Having noted as above, the principles for granting of stay of execution pending hearing of an appeal are settled. They are governed by Order 42, Rule 6 of the Civil Procedure Rules, 2010 which provides as follows: -“(1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of 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 order set aside.(2)No order for stay of execution shall be made under subrule (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; and(b)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.(3)Notwithstanding anything contained in subrule (2), the court shall have power, without formal application made, to order upon such terms as it may deem fit a stay of execution pending the hearing of a formal application.

14. The power of a court to grant stay of execution is discretionary and just like any other discretionary power, the same must be exercised judiciously and not capriciously or whimsically. It must be recalled that the purpose of stay of execution is to preserve the subject matter in dispute while balancing the interests of each of the parties to the dispute.

15. In RRW v EKW [2019] eKLR, the Court of Appeal addressed itself on this issue as hereunder: -“…The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs. Indeed, to grant or refuse an application for stay of execution pending appeal is discretionary. The Court when granting the stay however, must balance the interests of the Appellant with those of the Respondent...”

16. Having settled on the principles, an interrogation of whether the Applicant has met the tests above is imperative. On substantial loss, the Applicant submits that execution is imminent having been served with a letter on 23rd May, 2022 wherein the Respondent tabulated his costs. There was nothing more that was said on this limb and this court is unable to authoritatively state whether any party stands to suffer substantial loss if stay is not granted.

17. Though the Applicant states that there is risk of execution, the nature of that risk is not borne from the affidavit evidence. In James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, the court while addressing this limb had the following to say; -“…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… This is so because execution is a lawful process…”

18. Therefore, the fact that the Respondents might have set in motion the process of execution does not of itself amount to substantial loss. As was held in the above case, 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.

19. In the same decision above, the Court held that substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory. The Applicant states that if stay is not granted, he would be executed thereby resulting to substantial loss. On the other hand, the Respondent states that he would be prevented from enjoying the fruits of the judgement.

20. This Court while balancing these two interests, must satisfy itself that that no party would suffer undue prejudice. The Court of Appeal in Absalom Dova v Tarbo Transporters [2013] eKLR while enunciating this principle stated as follows: -“…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...”

21. It is my considered view that since it is not in dispute that an appeal has been filed, the substratum of the case ought to be preserved and I thus find that stay sought would be the most efficacious order.

22. On the issue of delay, I note that the application was filed timeously and I need not say more on this limb.

23. Lastly, the Applicant is required to furnish security to the Court as security for the performance of the judgment should the appeal fail. The purpose of security was clearly enunciated in Arun C. Sharma vs. Ashana Raikundalia t/a Raikundalia & Co. Advocates & 2 others [2014] eKLR, where the court stated: -“…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...”

24. This is being a money claim, deposit of the decretal sum in an escrow is what courts normally order. Ordinarily, giving of security should be done as a sign of good faith that the Applicant is ready and willing to commit to giving security. But my reading of order 42 rule 6(2) (b) of the CPR reveals that, it is the court that orders the kind of security the Applicant should give as may ultimately be binding on her. This modeling of the law is to ensure the discretion of the court is not fettered. Being a money claim, I direct the Applicant to deposit the decretal sum in an escrow account in the name of both Counsel on record within the next thirty (30) days.

25. On the issue of costs, the same shall abide the outcome of the appeal.

26. Following the foregone discourse, the upshot is that the following orders do hereby issue: -a.The application dated 16th June, 2022 is hereby allowed on the following terms: -i.Stay of execution of the judgement delivered on 4th May, 2022 is hereby granted;ii.The Applicant to deposit the entire decretal sum in an escrow account in the name of the parties Counsel within the next thirty (30) days;iii.In default of (ii) above, the appeal shall stand dismissed.b.Costs to abide the outcome of the appeal

Orders accordingly.

DATED, SIGNED AND DELIVERED AT MOMBASA THIS 17TH DAY OF NOVEMBER, 2023. F. WANGARIJUDGEIn the presence of;N/A for the Applicant/AppellantMr. Njuguna Advocate for the RespondentBarille, Court Assistant