[2022] KEHC 15392 (KLR)

Shah v Azim Sameja t/a Business 2000; Kamlaben & 4 others (Judgment debtor) (Civil Case 689 of 2001) [2022] KEHC 15392 (KLR) (Civ) (11 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15392 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case 689 of 2001

JK Sergon, J

November 11, 2022

Between

Jitendrakumar Lakhamshi Shah

Objector

and

Azim Sameja t/a Business 2000

Decree holder

and

Lakhamshi Virpal Shah Kamlaben

Judgment debtor

Lakhamshi Shah Sureshchandra

Judgment debtor

Lakhamshi Shah Ashokkumar

Judgment debtor

Lakhamshi Shah Harsha Lakhamshi

Judgment debtor

Shah Pratima Lakha Shah t/a Highpark Investments

Judgment debtor

Ruling

1. The subject matter of this ruling is the motion dated May 23, 2022 taken out by Jitendrakumar Lakhamshi Shah, the objector/ applicant who sought for the following orders:i.That the application herein be certified as urgent and be heard exparte in the first instance.ii.That the honourable court be pleased to stay the auction of Nairobi LR No. 208/5802 in Highridge parklands pending the filing, hearing and determination of the intended appeal.iii.That the honourable court be pleased to grant the objector/applicant leave to appeal against the ruling and orders of this court delivered on May 17, 2022. iv.That the costs of this application be provided for.

2. The objector/applicant filed an affidavit and a further affidavit in support of the motion. When served with the motion, Azim Sameja t/a Business 2000, the decree/holder respondent, he filed a replying affidavit to objector’s application.

3. I have considered the grounds stated on the face of the motion plus the facts deponed in the rival affidavits. I have also considered the rival oral submissions of learned counsels.

4. It is the submission of the objector/applicant that his property i.e L.R no. 206/5802 has already been attached by the decree holder and that his objection to attachment was dismissed on May 17, 2022 and that the deputy registrar of this court was directed to settle the terms of sale of the aforesaid property.

5. The objector/applicant stated that unless he is granted an order for stay of execution his property is in danger of being auctioned rendering the intended appeal nugatory.

6. The decree holder is of the submission that the objector’s motion lacks merit hence it should be dismissed. It is pointed out that the objector filed the instant application as an afterthought and only after the decree holder commenced execution proceedings.

7. The decree holder further pointed out that the objector has not offered security for the due performance of the decree. It is also stated that this court issued negative orders by dismissing the objection proceedings, therefore there is nothing to stay.

8. Having considered the material placed before this court and having considered the rival oral submissions made by learned counsels, it is apparent that on May 17, 2022 this court delivered a ruling over two applications. The first application is the motion dated October 30, 2019 taken out by the decree holder. The second application is dated December 20, 2019 taken out by the objector.

9. This court dismissed the objector’s application dated December 20, 2019 and allowed the decree holder’s application dated October 30, 2019. The decree holder was basically allowed to have L.R no. 206/5802 sold by Bealine Kenya Auctioneers. The deputy registrar of this court was also directed to settle the terms of the sale. In the motion dated December 20, 2019, the objector had sought for inter alia the attachment of L.R no. 206/5802 to be raised and or removed. This court proceeded to dismiss the same.

10. In determining an application for stay of execution pending appeal under order 42 rule 6(1) of theCivil Procedure Rules, three principles have to exist to successfully obtain such orders. First, the application must be filed without unreasonable delay. Secondly, an applicant must show the substantial loss he would suffer if the order for stay is denied. Thirdly, the court should determine the appropriate security the applicant should provide for the due performance of the decree.

11. In the instant application, the decision sought to be stayed was made on May 17, 2022 while the application for stay was filed on May 23, 2022. I am convinced the application was made without unreasonable delay. On the second principle as to the substantial loss, the objector merely said that his property i.e the attached property may be sold in execution of the court order.

12. The execution process is a lawful process protected by law. The decision of this court appears to indicate that the objector did not establish the proprietary interest over the attached property therefore the assertion by the objector that he would suffer substantial loss cannot stand. I find that the objector has failed to establish the substantial loss he would suffer if the order for stay is denied.

13. The third principle is the provision of security for the due performance of the decree. In the matter before this court, it may not be necessary to order the objector to provide security because the property is already attached and is available for sale when required by the decree holder. Having failed to establish the cornerstone in applications for stay of execution pending appeal, the objector’s application therefore lacks merit.

14. The applicant had sought for leave to appeal against the ruling of this court. The first application dated October 30, 2019 is premised on order 22 rule 57 of the Civil Procedure Rules. The objector has an automatic right of appeal under order 43 rule 1(1) of the Civil Procedure Rules. However, leave to appeal is required in respect of the ruling on the application premised on order 22 rule 51 of the Civil Procedure Rules.

15. The objector is required to show sufficient cause to enable this court grant the order. The objector miserably failed to establish such a cause.

16. In the end, I find the objector’s motion dated May 23, 2022 to be without merit. The same is dismissed with costs to the Decree Holder.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 11TH DAY OF NOVEMBER, 2022. ………………………J. K. SERGONJUDGEIn the presence of:…………………………… for the Plaintiff…………………………… for the Defendant