[2023] KEELC 579 (KLR)

Sea Star Malindi Limited v Kenya Wildlife Service; Standard Chartered Bank & another (Garnishee) (Environment & Land Case 56 of 2016) [2023] KEELC 579 (KLR) (7 February 2023) (Ruling)

Neutral citation: [2023] KEELC 579 (KLR)

Republic of Kenya

In the Environment and Land Court at Malindi

Environment & Land Case 56 of 2016

MAO Odeny, J

February 7, 2023

Between

Sea Star Malindi Limited

Plaintiff

and

Kenya Wildlife Service

Defendant

and

Standard Chartered Bank

Garnishee

Kenya Commercial Bank

Garnishee

Ruling

1. This ruling is in respect of a Notice of Motion dated February 22, 2022 by the Defendant/ Judgment Debtor seeking the following orders;a.Spentb.Pending the hearing and determination of this application inter partes there be stay of execution of the decree in this matter issued on November 9, 2018. c.Further proceedings in this suit be stayed pending the hearing and determination of the Court of Appeal at Malindi, Civil Application No 44 of 2021; Kenya Wildlife Services v Sea Star Malindi Limited.d.In the alternative, the court do issue an order setting aside the garnishee proceedings pending hearing and determination of Court of Appeal at Malindi, Civil Application No 44 of 2021; Kenya Wildlife Services v Sea Star Malindi Limited.e.The costs of this application be provided for.

Applicant’s Case 2. The Applicant laid the following grounds on the face of the application: -a.The Plaintiff has moved to execute the decree herein while the Defendant has sought a stay of execution in the Court of Appeal.b.The operations of the Defendant, a public entity, are at risk of being ground to a halt as the Defendant seeks to attach its bank accounts.c.The Plaintiff has by various letters demanded a sum in excess of Kshs 2 billion.d.The Defendant’s right of appeal will be curtailed unless there is a stay of execution and proceedings.

3. The application was supported by the Affidavit of Benta Musima sworn on February 22, 2022 where she deponed that judgment was entered on the July 31, 2018 against the Defendant for a total of Kshs 120,000,000/- and thereafter they filed an application before the Court of Appeal seeking to stay the execution of this court’s decree.

4. She also deponed that while waiting for the Court of Appeal to communicate to them the date for the hearing of the application, they received information that the application come up for hearing on August 3, 2021 whereby it was dismissed for want of prosecution. That they filed an application to reinstate the application on August 5, 2021 which was to be heard on November 29, 2021 but it was taken out and that they are yet to receive a new date.

5. It was further the Applicant’s averment that the Plaintiff’s application dated February 7, 2022 seeks to garnishee the Defendant’s bank account and if the court hears the said application, the substratum of the application before the Court of Appeal will be defeated. She also stated that if the order of stay of execution is not granted, the Applicant will end up being forced to apply taxpayer’s funds meant for conservation to settle the decretal sum yet it has an appeal with a high probability of success and which it should be allowed to prosecute.

6. According to the Applicant, if the decretal sum which is in excess of Kshs 2 billion is paid out, the Applicant would not be able to carry out any development and a fifth of its recurrent expenditure would be applied to settle the decretal sum. Further, that the Applicant has made significant gains in its conservation efforts and its work would be severely hampered and brought to a complete standstill if the decree is executed.

7. The Applicant also stated that it is in the public interest that the order of stay of execution be granted as the conservation work undertaken by the Applicant are for the benefit of the Kenyan public. According to her, the Plaintiff’s means and assets are unknown and the Applicant is apprehensive that it will not recover the sums it would have made to pay in the event the appeal succeeds.

Respondent’s Case 8. The Plaintiff/ Decree Holder in response to the application dated February 22, 2022 filed grounds of opposition and stated that the application for stay of execution of the decree in Malindi ELC Case No 56 of 2016 is wrongly placed before the court and that the prayers sought in the said application were previously sought in this Honourable court and denied.

9. That the application for stay of execution before the Court of Appeal was dismissed on August 3, 2021 and the current application before the Court of Appeal is an application for reinstatement and that the Applicant herein is forum shopping for stay of execution by filing similar applications in various courts.

Applicant’s Submissions 10. Counsel submitted that the that the court has inherent jurisdiction to stay execution of proceedings and relied on the case of Savings & Loan Kenya Ltd v Odongo (1987) eKLR where the court highlighted the use of inherent powers in granting stay proceedings in view of an intended appeal and courts maintaining the status quo until the filing of an intended application for leave to appeal.

11. Counsel further relied on the Court of Appeal case of David Morton Silverstein v Atsango Chesoni (2002) eKLR where the court held that each application for stay of proceedings ought to be decided on its own facts.

12. Counsel also relied on the cases of Global Tours & Travels Limited; Nairobi HC Winding Up Cause No 43 of 2000 and Kenya Alliance Co Ltd v Annabel Muthoki (2020) eKLR and submitted that the decision whether or not to grant stay of proceedings being discretionary, the application must be made without unreasonable delay since it is an equitable principle that delay defeats equity as equity aids the vigilant, not the indolent.

13. It was counsel’s submission that what matters in these circumstances is the overall impression the court makes out of the total sum of the circumstances presented before it and whether these circumstances arouse a compulsion to stay the proceedings in the interest of justice. Counsel therefore submitted that it would only be fair and just for the court to stay the garnishee proceedings to give the Court of Appeal a chance to consider the application before it.

14. Mr Mugambi further told the court recent jurisprudence from the Supreme states that where a higher court is handling a matter, it is prudent that the court below it cedes jurisdiction to the higher court

Respondent’s Submissions 15. Counsel for the Respondent identified three issues for determination namely: -a.Whether a stay of proceedings can be issued by this Honourable Court pending the hearing and final determination of Court of Appeal Civil Application No 44 of 2022,b.Whether the Plaintiff’s Application dated February 7, 2022 (Garnishee application) can be set aside pending the hearing and determination of Court of Appeal Civil Application No 44 of 2021c.Who should bear the costs of this application.

16. On the 1st issue as to whether a stay of proceedings can be issued pending the hearing and determination of Court of Appeal Civil Application No 44 of 2022, counsel submitted that a similar application dated December 27, 2018 was made before this Court and a ruling delivered on October 28, 2019 which application was dismissed.

17. Counsel submitted that this Court would be sitting on appeal on as the issued was heard and determined. Further that the Applicant has neither applied for review nor filed an appeal on the decision hence it is res judicata. Counsel relied on the case of National Bank of Kenya Limited v Ndungu Njau (1997) eKLR.

18. On the 2nd issue, counsel submitted that setting aside applies to judgments, orders and rulings and that a Respondent to an application cannot apply to court to have an application duly filed and not yet heard on merit to be set aside. He submitted that this prayer as sought would infringe on the rights and fundamental freedoms enshrined in Article 50 (1) of theConstitution, that setting aside the garnishee application would lead to the infringement of the fair hearing principle. Counsel relied on the case of Pinnacle Project Limited v Presbyterian Church of East Arica, Ngong Parish & another [2018] eKLR.

19. Mr Mwai highlighted the process of initiating garnishee proceedings as per Order 23 (1) of the Civil Procedure Rules whereby the application is done ex parte and that the court automatically grants the order as it is preservatory in nature. Counsel relied on the case of Patrick L Otieno - Oyoo t/a Otieno Oyoo & Co Advocates v Africa Merchant Assurance Co Ltd; Diamond Trust Bank Kenya Limited (Garnishee) [2021] eKLR where the court stated that there are two stages involved in Garnishee proceeding whereby the first stage is for the garnishee order nisi to issue exparte upon receipt of an application by the decree holder while the second stage is for the garnishee order absolute. That at the first stage, the judgment creditor makes an application ex parte to the Court that the judgment debt in the hands of the third party, the Garnishee, be paid directly to the judgment creditor unless there is explanation from the Garnishee why the order nisi should not be made absolute.

20. Counsel submitted that the Judgment Debtor is not a party to the garnishee proceedings hence they have no locus standi to ask for the same to be dismissed or set aside in the instant application and urged the court to dismiss the applicant’s application with costs.

Analysis And Determination. 21. The Defendant/ Judgment Debtor seeks for stay of execution of the decree issued on November 9, 2018 and stay of proceedings pending the hearing and determination of the Court of Appeal at Malindi, Civil Application No 44 of 2021; Kenya Wildlife Service v Sea Star Malindi Limited.

22. The issue for determination is whether the court can grant the orders as sought by the Applicant taking into account the history of this matter.

23. It is important to give a brief background to the case to enable the court come to a just and fair conclusion.

24. It is on record that Judgment was delivered in this matter on July 31, 2018 and the Defendant preferred an appeal before the Court of Appeal by filing a Notice of Appeal dated December 18, 2018. In the same application, the Applicant also sought for stay of execution of the Judgment pending the hearing and determination of the intended appeal. In a Ruling of this court dated October 8, 2019, the court dismissed the application of and stated as follows;“While it is true that the decretal sum is substantial, nothing was placed before me to suggest that the payment of the said sum would lead to irreparable financial harm to the applicant. Indeed, I did not hear the Applicant contend that the Respondent is, as they say, a man of straw incapable of refunding the decretal sum where the intended appeal were successful”

25. It should further be noted that a similar application dated December 27, 2018 seeking the same order for stay of execution was made vide application dated December 27, 2018 and a ruling delivered on October 28, 2019 which application was dismissed.

26. The Applicant is using a double edged sword to apply for stay of execution and stay of proceedings. It is also strange that the Applicant is seeking for setting aside garnishee proceedings application which has not been heard.

27. Order 23 Rule (1) of the Civil Procedure Rules provides for attachment of debts as follows:1 (1)A court may, upon the ex parte application of a decree- holder, and either before or after an oral examination of the judgment-debtor, and upon affidavit by the decree-holder or his advocate, stating that a decree has been issued and that it is still unsatisfied and to what amount, and that another person is indebted to the judgment-debtor and is within the jurisdiction, order that all debts (other than the salary or allowance coming within the provisions of Order 22, rule 42 owing from such third person (hereinafter called the “garnishee”) to the judgment-debtor shall be attached to answer the decree together with the costs of the garnishee proceedings; and by the same or any subsequent order it may be ordered that the garnishee shall appear before the court to show cause why he should not pay to the decree- holder the debt due from him to the judgment-debtor or so much thereof as may be sufficient to satisfy the decree together with the costs aforesaid. Third, the above rule contemplates the existence of a decree for the amount claimed. Generally, Garnishee proceedings is done in two different stages.

28. The procedure for attachment of debts through garnishee proceedings are as provided above and the application is made ex parte. A garnishee order nisi issues ex -parte upon receipt of an application by the decree holder and the second stage is for the garnishee order absolute. The money to be paid directly to the judgment creditor unless there is an explanation from the Garnishee why the order nisi should not be made absolute.

29. The reason for highlighting this is because it was raised by the Applicant seeking the Garnishee application dated February 7, 2022 to be set aside.

30. The Applicant is in a difficult situation which has been occasion by the dismissal for want of prosecution of the application that they had filed for stay of execution in the Court of Appeal. The application that is pending in the Court of Appeal is an application for reinstatement of the dismissed application. The application for stay of execution in this court had been dismissed therefore it is still a valid order that has not been appealed against.

31. On the issue of stay of proceedings, it is trite that a decision on whether or not to grant stay of proceedings is discretionary and this Court has powers to stay proceedings pending an Appeal as provided for under Order 42 rule 6 (1) of the Civil Procedure Rules.

32. In the case of Re Global Tours & Travel Ltd HCWC No 43 of 2000 (supra) Ringera, J (as he then was) 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…”

33. Similarly in the case of Kenya Wildlife Service v James Mutembei [2019] eKLR the court 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…”

34. The application for stay of proceedings has been brought to circumvent the fact that an application for stay had been dismissed and is therefore declined.

35. Filing a similar application is an abuse of court process. The court can only empathize with the Applicant’s situation and say no more as allowing the application would also be an abuse of court process. The Applicant can find solace in trying to fast track the hearing of the application in the Court of Appeal. This is also a very old matter which has been in court since 1997.

36. Consequently, I find that the application lacks merit and is dismissed with costs.

DATED, SIGNED AND DELIVERED AT MALINDI THIS 7THDAY OF FEBRUARY 2023. M A ODENYJUDGENB: In view of the Public Order No 2 of 2021 and subsequent circular dated March 28, 2021 from the Office of the Chief Justice on the declarations of measures restricting court operations due to the third wave of Covid-19 pandemic this Ruling has been delivered online to the last known email address thereby waiving Order 21 [1] of the Civil Procedure Rules.