[2023] KEHC 26538 (KLR)

Sonado Ceramics Limited v Wandiri (Suing as the legal representative of the estate of Julius Murithi (Deceased)) (Civil Appeal E129 of 2023) [2023] KEHC 26538 (KLR) (7 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26538 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Appeal E129 of 2023

EM Muriithi, J

December 7, 2023

Between

Sonado Ceramics Limited

Applicant

and

Mercy Wandiri

Respondent

Suing as the legal representative of the estate of Julius Murithi (Deceased)

(An Appeal against the Judgement of M.A ODHIAMBO at the Meru Magistrate's court in Civil Case no. 140 of 2022 and delivered on the 21st July, 2023)

Ruling

The Application 1. Before the court is application by Notice of Motion dated 17/8/2023 by the appellant judgment debtor in a civil suit before the trial court in a personal injury claim pending appeal therefrom and seeking specific relief as follows:“1. (spent)2. (spent)3. That This Honourable court be pleased to issue Orders of stay of execution of the Judgement which was delivered on 21st July 2023 by Hon. M.A Odhiambo in Civil Case No. E 140 of 2022 before the Senior Resident Magistrate Court at Meru and the resultant Decree of the Court pending the hearing and determination of the appeal.4. That the court be pleased to grant any other orders it deems fit in the interest of justice.”

2. The application was opposed by the Respondent who set up, by her Replying Affidavit and Counsel’s submissions, a case of abuse of the court process urging that the Applicant had, following adverse orders on an application for stay of execution pending appeal before the trial court, withdrawn that application and filed the present application before this court, as related in paragraphs 3-7 of the Replying Affidavit sworn by the Respondent on 4/9/2023 as follows:“3. That the Appellant has not divulged the whole truth in relation to this Suit.4. That the Appellant after having being dissatisfied with the judgment of the lower court, filed an Application, in the same court, under certificate of urgency dated 4thAugust 2023 seeking for stay orders pending Appeal. (Annexed and marked MWl is a copy of the Application)5. That the Application was heard ex parte and the Honourable court granted stay orders on condition that the Appellant does deposit 1/2 of the decretal sum (KSH 756,855/) in a joint interest earning account in the name of the Advocate for the Plaintiff and Defendant within 14 days from the 10th August 2023. (Annexed and marked MW2 is a copy of the order)6. That the Application was set down for directions on the 5thSeptember 2023. 7.That the Appellant in an effort to defeat court orders dated 10th August 2023, filed this present Application on the 17thAugust 2023 under certificate of urgency and was granted stay orders exparte. (Annexed and marked MW3 is a copy of the order)”.

3. For the Applicant, it was conceded that there was an earlier application dated 4/8/2023 before the trial court but which was withdrawn on 5/8/2023 with the knowledge of the counsel for the respondent and the award of costs to the respondent. In a supplementary affidavit of the Applicant’s Director sworn on 22/9/2023, it was further contended that the Respondent had not responded to the merit of application before this court, which Counsel then urged that it be considered unopposed.

Determination 4. So if it was withdrawn before the trial court, why is it refiled before this appellate court? Why did not the applicant seek leave to reinstate the application before the trial court, if good grounds existed therefor?

5. Although Oder 42 Rule 6 (1) of the Civil Procedure Rules gives the court to which an appeal is preferred the jurisdiction to consider an application for stay of execution whether such application shall have been granted or denied by the trial court, it is clearly an abuse of the court process to seek to avoid complying with orders already made upon an application for stay before the trial court by withdrawing such application, in a deceptive and sharp practice act of forum shopping, only to repeat the same application before the appellate court.

6. In the present case, it appears to this court that the refiling of the application for stay of execution before this court is merely to sidestep the adverse orders of stay before the trial court hoping for more favourable orders from this court. It is clearly a deplorable case of forum shopping which must be frowned upon and discouraged not only by the dismissal of the application but an order that the Counsel who moves the Court on behalf of such an applicant be punished by an order for payment of costs personally for his sharp practice.

7. The overriding objective of the civil process under section 1A and 1B of the Civil Procedure Act which overrides the Civil Procedure Rules kicks in and, in terms of Hunker Trading Company Limited v. Elf Oil Kenya Limited [2010] eKLR, dictates that the second application does not properly invoke the original jurisdiction of the appellate court –“In the circumstances, we find that the exercise by us of any original jurisdiction would be inappropriate where, as in this case, the lower court has exercised a parallel jurisdiction; it must be demonstrated to this Court that the jurisdiction of the lower court has not been properly exercised, otherwise we would be encouraging duplication of effort and poor management of the available resources.”.

8. This is an occasion for this Court’s restatement of its decision in Collin Bett v. Silas Kabisa [2016] eKLR where, relying on among other decisions the Court of Appeal holding in Hunker case, said as follows:“ConclusionAs I held in Heritage Insurance Company Limited v. Patrick Kasina Kisilu Machakos HC Civil Appeal NO. 142B of 2015,I agree with the general tenor of the court decisions that take the view that to file similar application over the same subject matter seeking similar reliefs is an abuse of the court process. Indeed, where such applications have previously determined the matter the subsequent applications are barred by the principle of res judicata (see Mburu Kinyua v. Gichini Tuti (1978) KLR 69); where an application is dismissed for want of appearance, the applicant cannot be allowed to bring a second application unless he seeks reinstatement of the application for good cause (Wanguhu v. Kania(1987) KLR 51) and where the earlier one is not concluded, a similar subsequent application is sub judice by virtue of section 6 of the Civil Procedure Act.As demonstrated by Hunker Trading Company Limited case, to file an application in the appellate court for stay of execution after having faded to comply with the terms of an order of stay granted upon a similar application for stay before the trial court is an abuse of the process of the court. This has the same effect on the process of the court as filing repeated applications seeking the same relief where such relief is denied in previous proceedings before the same or other court.In this case, by his conduct in delaying for two (2) months since the adverse order the filing of the application and in failing to comply with terms of orders made by the trial court upon grant of a previous application for stay, even though alleged caused by unrelated cancellation of mining licence, the applicant has disentitled himself to the favourable exercise of discretion of the court.”

9. The Court does not have to consider the terms of stay and the authorities relied on by the applicant for deposit of an asset in lieu of monetary deposit as security having held that the present application is an abuse of the process of the Court and it is dismissed on that ground, without delving into its merits.

Orders 10. Accordingly, for the reasons set out above, the court makes the following orders:1. The appellant’s application for stay of execution dated 17/8/2023 is declined for being an abuse of the process of the court.2. The order of interim stay of execution granted pending hearing and determination of this application is discharged.3. The Respondent shall have the costs of the application to be paid by the advocates for the applicant, M/S Swaka Advocates, personally.

Order accordingly.

DATED AND DELIVERED THIS 7TH DAY OF DECEMBER, 2023. EDWARD M. MURIITHIJUDGEAppearances:Ms. Kamaka for Mr. Swaka for the Applicant.Mr. H. Kirimi for the Respondent.