[2020] KEHC 706 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL APPEAL NO. 83 OF 2020

ST. JOHN MISHOMORONI ACADEMY...................................APPELLANT/APPLICANT

-VERSUS-

YAKUB SHABAN...............................................................................................RESPONDENT

RULING

1. On 9th July, 2020 the Appellant/Applicant filed a Notice of Motion application dated 8th July, 2020 under Certificate of Urgency seeking for orders that:-

a. Spent;

b. Spent;

c. This court be pleased to grant a stay of execution of the Judgment of the Honourable G. Kiage (S.R.M) Mombasa delivered on the 28th May, 2020 at Mombasa in CMCC No. 473 of 2018 pending the hearing and final determination of this appeal.

d. That this Honourable court be pleased to give any other and/or further Orders it may deem just and fair grant;

e. That the costs of this Application be borne by the Respondent.

2. The application is taken out under Sections 1A, and 3A, both of the Civil Procedure Act and Order 42 Rule 6(1) of the Civil Procedure Rules. The same is premised on eight (8) grounds on its face and supported further by the Affidavit of Raphael Obore, the owner of the Appellant School.

3. The Appellant/Applicant’s case is that a Judgment was delivered videMombasa CMCC No.473 of 2018on28th May, 2020 wherein the trial court granted possession of the entire property on which the Appellant school stands to the Respondent.

4. Aggrieved by the said Judgment, the Appellant preferred the Appeal herein, and unless the Stay Orders sought are granted, the lives of the pupils in the Appellant’s school will be gravely and adversely affected to the extend of curtailing their rights to education.

5. Also, the Appellant submits that it will suffer substantial loss because it will be next to impossible to restore the school to its previous position if the status quo is not maintained.

6. In response to the application, the Respondent filed a Replying Affidavitdated13th July, 2020. The Respondent deposited that the claim by the Applicant is unfounded because it has not demonstrated that it has a document reflecting ownership to the land. Further, that the deponent of the Affidavit in support of the application has not demonstrated that he has the authority to represent the applicant.

7. The Respondent is critical to the allegation that the Appellant/ Applicant’s children will be endangered because according to her, the school being a private school is a business and as such the children are a scapegoat to enrich the Applicant at the expense of her (Respondent’s) loss. In any event, the Respondent is of the view that if any loss is to be occasioned it is capable of being compensated by way of damages. Instead, the Respondent avers that it would be unfair to issue the orders for Stay just because security can be offered.

8. It is the Respondent’s case that the intended appeal raises no arguable points, and in the event that the court is minded to grant the orders for stay then it should direct that the Applicant ceases any operations on the suit property pending the determination and conclusion of the Appeal.

9. In response to the issues raised by the Respondent in the Replying Affidavit, the Applicant filed a further affidavit on 4th August,2020 sworn on the 3rd August, 2020. The Applicant avers that the appeal has been filed within time and there is no undue delay to explain. In his view the Replying Affidavit is misconceived.

10. The application was canvassed by way of written submissions. The Appellant/Applicant filed his on 5th August, 2020 whilst the Respondent filed her submissions on 19th August, 2020.

11. The Applicant in its submissions invites the court to take judicial notice of the fact that due to the Covid-19 situation, the Ministry of Education has suspended learning to be resumed in January 2021. Therefore unless stay is granted, the minor students in the Applicant school will be prejudiced because they will lack a place to learn given that they ought to repeat their current classes. The Applicant relies on the case of Butt –vs- Rent Restriction Tribunal [1982] KLR 417where the court dictated the preconditions to be considered by court in deciding whether or not to grant the orders of stay. On that note, the Applicant submits that it has met the precondition for stay by establishing that it will suffer substantial loss together with the students enrolled to the institution if stay is not granted. Further, that it is willing to provide any security or a formal undertaking if it is required by the court to do so. As for whether the appeal is arguable, it is the Applicant’s submissions that the issue can only be addressed at the hearing of the Appeal.

12. The Respondent on the other hand submitted on four issues. Firstly, the Respondent submitted that the intended appeal is not arguable because the Applicant lacks evidence to show that he should be granted possession of the suit property. In any event, the court ought to balance the Applicant’s right of appeal against the Respondent’s right of enjoying the fruits of the Judgment and there should be a just cause to deprive the Respondent the right to enjoy the fruits of her Judgment.

13. Secondly, the Respondent submits that the Applicant has failed to prove that he will suffer substantial loss since the school being a private school its only focus is business and can be compensated by award of damages. Thirdly, he states that the instant application has been brought after unreasonable delay, the Judgment being appeal from having been delivered on the 2nd May, 2020 and the instant application filed on 9th July, 2020. Lastly, it is the Respondent’s contention that the Applicant has failed to provide security as provided under Order 42 Rule 6 (2) of the Civil for Procedure Rules, 2010.

Analysis and Determination

14. I have considered the application vis-à-vis the Affidavits on record and the rival submissions. The principal prayer sought in the application is an order of stay of execution of the judgment to grant vacant possession delivered on 2nd May, 2020 pending the determination of the Appeal herein.

15. Applications of this nature are governed by the provisions of Order 42 Rule 6 (2)which provides as follows:-

(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.

16. It will be discerned from the above that the Applicant needs to satisfy the court that the application has been made timeously; that substantial loss may result if a stay is not granted and the Applicant must give security for the due performance of the decree or order appealed against.

17. I opt to start with the aspect of delay. The lower court record is clear that the Judgment being appealed against was delivered on 2nd May, 2020. The memorandum of appeal herein was filed on 26th June, 2020 whilst the instant application was filed on 9th July, 2020. In the circumstances, I do not find that there has been inordinate delay and hence it cannot be said that the Applicant is guilty of unreasonable delay.

18. The Second issue is that of the suffering substantial loss. It has been said before that substantial loss is the cornerstone upon which an application for stay of execution pending appeal is anchored (See the case ofKenya Shell Limited vs Benjamin Karuga Kigibu & Another (1982-1988) 1 KAR 1018). The court needs to strive to protect the appellant, so that he does not end up having a paper judgment, in the event that his appeal is successful. But even then, the court also needs to balance the interests of the successful respondent for he is also entitled to the fruits of his judgment (See the case of Port Reitz Maternity vs James Karanga Kabia, Civil Appeal No. 63 of 1997).

19. In the Judgment delivered by the trial court, there is only one thing that requires performance on the part of the Applicant, that is, the Applicant to give vacant possession of the suit property to the Respondent. I believe it is the only thing that the Applicant wishes to have stayed pending the hearing of this appeal. On that note, the Applicant has averred that the minor students enrolled in the Applicant institution will be unreasonably prejudiced if vacant possession is given to the Respondent because they will have no place to study from. He also avers that the appeal will be rendered nugatory since it will be next to impossible to restore the school to its current position. In essence, what the Applicant wants is to keep possession of the suit premises until this Appeal is heard and determined.

20. In the circumstances, I am persuaded that the minor children enrolled to the Applicant’s institution are likely to suffer prejudice if vacant possession is granted to the Respondent when the Applicant has preferred an Appeal, whose outcome is unknown in the meantime. It will be unfair if the date of opening the school, the minor students are confronted with a new scenario, that their school is no more. It is for this reason that I am persuaded that the Applicant has made out a case that it is likely to suffer substantial loss.

21. However, the court is mindful that the competing rights of both the parties herein ought to be balanced and equally bears the duty of ensuring parties, in this case, the Appellant, fast tracks the hearing of their case.

22. I therefore allow the application dated 8th July, 2020 and grant the Applicant/Appellant Stay of Execution of the Judgment delivered on 28th May, 2020pending the hearing and determination of the Appeal in thefollowing terms:-

a. The Appellant/applicant be and is hereby directed to prepare, file and serve the Record of Appeal alongside written submissions within 45 days from today.

b. Upon being served with the Record of Appeal and written submissions by the Appellant/Applicant, the Respondent to file and serve written submission within 30 days from the date of service.

c. Mention on 22nd March 2021 for highlighting.

d. Time being of essence, failure to comply with aforestated directions, the Appeal shall stand dismissed.

It is so ordered.

DATED, SIGNEDandDELIVEREDatMOMBASAon this2ndday ofDECEMBER, 2020.

D. O. CHEPKWONY

JUDGE

In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship the Chief Justice on 15th March 2020, this Ruling has been delivered to the parties online with their consent. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules which requires that all judgments and rulings be pronounced in open Court.

D. O. CHEPKWONY

JUDGE