[2023] KEHC 25356 (KLR)

Thiongo & 2 others v Mbugua & 2 others (Civil Case 119 of 2017) [2023] KEHC 25356 (KLR) (Civ) (17 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25356 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case 119 of 2017

AN Ongeri, J

November 17, 2023

Between

Kamau Thiongo

1st Plaintiff

Weddy Njeri Gitau

2nd Plaintiff

Fresiah Mbugua

3rd Plaintiff

and

Mary Wambui Mbugua

1st Defendant

Jessica Akinyi Odhiambo

2nd Defendant

Eunice Wanjiku Mararo

3rd Defendant

Ruling

1. The application coming for consideration is the one dated 17/4/2023 brought under order 42 rule 6 of the Civil Procedure rules 2010, Section 1A, 1B, 3 and 3A of the Civil Procedure Act Cap 21 Laws of Kenya seeking the following orders;i.Thatthis application be certified as urgent and be heard urgently in the first instance.ii.Thatthere be a stay of execution of the judgment and decree made herein on the 28th day March 2023 until the application herein is heard and determined.iii.Thatthere be a temporary stay of execution of the judgment and decree made herein on the 28th day of March 2023 until the appeal preferred to the court of appeal is heard and determined.iv.Thatthe judgment and decree be interpreted by this honourable court for determination of the rights of the defendants and the rest of the committee members of Muungano Slaughter House Women Society.v.That the honourable court give directions on the status quo.vi.Thatcosts of this application be in the cause.

2. The application is premised on the following grounds;i.That judgment was read on 28th of March 2023. ii.That the defendant being dissatisfied with the said judgment have preferred an appeal to the Court of Appeal.iii.That the defendants applied for a certified copy of the proceedings, judgment and decree on or about the 13th of April, 2023 for purposes of appeal.iv.That the 2nd plaintiff with other people who are not party to this suit have invaded the slaughterhouse and have started running the same.v.That such invasion is confrontational and is likely to cause mayhem and public disorder.vi.That unless properly interpreted such action might lead to bloodshed

3. The application is supported by the affidavit of Mary Wambui Mbugua sworn on 17/4/2023 in which she deposed that being dissatisfied with the judgement and decree of the court the defendants have preferred an appeal to the court of appeal. She has applied and paid a deposit for certified copies of the proceedings judgement and decree in this matter.

4. On or about 6/4/2023 the 2nd plaintiff in the company of Veronia Munee, Mumina Bubicha, Joan Wangui Peter, Mary Muthoni and Amina Abdulla invaded the slaughter house belonging to Muungano Women Society and started running the affairs of the society without the decree of the court. Nothing in the judgement indicated that the 2nd defendant was to take over the running of the society without an election.

5. The respondents filed a replying affidavit sworn byWeddy Njeri Gitauon 19/6/2023 opposing the application dated 17/4/2023. It is deposed that upon delivery of judgement this court became functus officio. That further the persons named in the affidavit by Mary Wambui were not in the initial suit and bear no correlation with the suit at hand. It is therefore imperative that should the defendant wish to enjoin them in the suit for the purposes of them responding, then she should file a fresh suit.

6. That the learned judge issued a declaration that reads "That a Declaration is hereby issued that the Defendants have run down the affairs of the Society in Contravention with the Societies Constitution.” Read together with Order vi issued in the Decree, the Defendant was supposed to convene an all-inclusive special General Meeting under the supervision of the Registrar of Societies. She failed to convene the same opting to rush back to court seeking stay orders. The Judge in his wisdom noted that indeed the affairs of the society were not in good hands. It was imperative to form a committee to oversee the affairs of the Society post-judgment since the Defendant was non-committal on the same.

7. Having failed to convene a General Meeting as ordered by the court, the prerogative was bestowed on her to convene the General Meeting in accordance with the law. The Registrar of Societies, having been satisfied that the issuance of notices and documents was proper, issued a letter dated 16/5/2023 wherein she approved our request to have the Special General Meeting and equally assigned officers from her office to assist in overseeing the process pursuant to the Court Orders.

8. The parties filed written submissions in the application as follows; the defendant/applicant submitted that they have complied with order 42 rule 6 of the Civil Procedure Rules and filed a Notice of Appeal on 12/4/2023 and served the same on the plaintiff’s advocates.

9. The defendants argued that the 2nd Plaintiff together with others invaded the slaughter house without a court order and took over the running of the society without first being elected in the general meeting as ordered by the court. There is no order in the judgement that give the 2nd plaintiff to take over the running of the society or to reinstate her to the position she had as secretary of the society. The court could have declared itself as clearly as it has on the other points.

10. The plaintiff/respondent submitted that the defendant/ applicant herein has not stated what substantial loss they are likely to suffer if their application is not granted. That in weighing whether to grant stay of execution pending appeal, the court must balance the rights of the Appellant as well as those of the respondent. The Applicant herein has mismanaged the affairs of the Society to the brink of collapse while almost selling off the society’s property. This has already been determined by the court. Having failed to satisfy the principles for grant of stay of execution orders, the application should be dismissed.

11. The issues for determination in this application are as follows;i.Whether the applicants are entitled to stay of execution pending appeal.ii.Whether the judgment delivered on 28/3/2023 should be interpreted for the determination of the rights of the defendants and the rest of the members of Muungano Slaughter House Women Society.

12. On the issue as to whether stay of execution should be granted pending the hearing and determination of the appeal, the governing principles for stay pending appeal is order 42 rule 6 which states 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 Applicants 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 Applicants”.

13. I find that the court gave declaratory orders which cannot be stayed. The court in its judgment dated 28th March 2023 gave the following declaratory orders:“i.A declaration be and is hereby issued that the defendants have run the affairs of the society in contravention of the society’s constitution.ii.A declaration be and is hereby issued that the special delegates meeting of the society held on 5th September 2012 was unlawful as it was held in contravention of the society’s constitution.iii.A declaration be and is hereby issued that all and/or any resolutions of the special delegates meeting of the society held on 5th September 2012, including the resolution to sell the society’s plot, are null and void.iv.An injunction be and is hereby issued restraining the defendants jointly and/or severally by themselves, their servants, employees, agents and/or through trustees of the society or otherwise howsoever, from selling, transferring, alienating, disposing or in any other way whatsoever parting with ownership and possession of all that parcel of land known as Title No.220/3 PT (UNS.Plot No. ‘B’).v.An order be and is hereby issued requiring the defendants to give a true and just account of the society’s income.vi.An order be and is hereby issued compelling the defendants to convene an all-inclusive special general meeting of the society as directed by the Deputy Registrar of Societies vide his letter dated 10th May 2012 under the supervision and coordination of the Registrar of Societies.vii.The defendants shall pay the 2nd plaintiff’s costs of the suit.viii.The 1st plaintiff’s suit abated while the 3rd plaintiff’s suit is hereby dismissed with costs.It is so ordered.”

14. On the issue as to whether the judgment and decree of this court should be interpreted, I find thatthe judgment is very clear that the Defendants were required to convene an all-inclusive special general meeting of the society as directed by the Deputy Registrar of Societies videhis letter dated 10th May 2012 under the supervision and coordination of the Registrar of Societies.

15. I find that the parties are duty bound to comply with the orders of the court.

16. Since the declaratory orders cannot be stayed, the plaintiffs are directed to enjoin theRegistrar of Societies for purposes of enforcement of the judgment of this court dated 28th March 2023.

17. However, in view of the objection raised by the Defendant/Applicants that this his case is pending appeal, I direct that the parties proceed to the Court of appeal.

18. This court is therefore functus official and I find that the Application dated 17/4/2023 lacks in merit and the same is dismissed with costs to the Respondents.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 17TH DAY OF NOVEMBER, 2023. ................................A. N. ONGERIJUDGEIn the presence of:……………………………………... for the Plaintiff……………………………………… for the Defendant