[2022] KEHC 14131 (KLR)

Vanga Express Limited v Springtech (K) Limited (Civil Appeal 11 of 2019) [2022] KEHC 14131 (KLR) (5 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14131 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal 11 of 2019

OA Sewe, J

October 5, 2022

Between

Vanga Express Limited

Appellant

and

Springtech (K) Limited

Respondent

Ruling

[1]The application before court is the notice of motion dated September 29, 2020. It was filed by the respondent/applicant for the following orders:(a)The orders of stay of execution granted on January 16, 2019 in Mombasa RMCC No 52 of 2016 be set aside entirely or varied on such terms as the court may deem just.(b)The costs of this application be borne by the appellant.

[2]The application is based on the grounds that on the January 16, 2019, the subordinate court granted the appellant an unconditional stay of execution pending hearing and determination of the intended appeal herein. The respondent complained that it has been well over 18 months since the stay orders were granted and the appellant is yet to file a record of appeal; and neither has it bothered to place the appeal before a judge in chambers for admission or rejection.

[3]The respondent further contended that it has been greatly prejudiced by the unconditional stay of execution orders as it has been unable to enjoy the fruits of its judgment that was issued well over 5 years ago on the February 23, 2016 as the existence of the unconditional stay has barred it from commencing execution proceedings to recover what it is owed as a successful litigant. It has also been asserted that the unconditional stay of execution is detrimental to the respondent as it was granted indefinitely. Accordingly, the applicant urged the court to grant the orders sought in compliance with article 159 (2) (b) of the Constitution of Kenya that requires expeditious administration of justice.

[4]The appellant was duly served with the application by the respondent as evidenced by an affidavit of service sworn on May 26, 2022 by the respondent’s sales manager, Mr Patrick M Mutuma. There is, thus far, no response filed by or on behalf of the appellant. In addition, the court record shows that a hearing notice was duly served on the appellant for June 28, 2022 when the instant application was fixed for hearing; and that no attendance was made by or for the appellant. Consequently, the application proceeded ex parte.

[5]The application was filed pursuant to article 159(2)(b) of the Constitution, sections 1A, 1B, 3 & 3A of the Civil Procedure Act, chapter 21 of the Laws of Kenya and order 42 rule 6 of the Civil Procedure Rules, 2010; and from the supporting affidavit and its annexures, it is manifest that the subordinate court granted an unconditional stay of execution to the appellant pending the hearing and determination of its intended appeal. A copy of the order of the subordinate court was annexed to the supporting affidavit and marked annexure BM-1. It reads as hereunder: -1. That leave be and is hereby granted to the defendant/applicant to file it’s [sic] appeal out of time.2. That an order be and is hereby granted staying the execution of the orders given on the April 29, 2016 pending the hearing and determination of the intended appeal.3. That the defendant to have costs of the application.

[6]A perusal of the record of the court further shows that the appellant filed a memorandum of appeal herein on the January 24, 2019 and since then there has been no action in the file herein prior to the filing of the instant application. Hence, the single issue for determination is whether the respondent has shown sufficient cause for the setting aside or variation of the stay orders given by the subordinate court on January 16, 2019.

[7]It is now well settled in law that an appellate court will not interfere with the exercise of discretion of a subordinate court unless it is shown that in exercising its discretion, the subordinate court misdirected itself in some matter and as a result arrived at a wrong decision and/or unless it is manifest from the case as a whole that the trial court was clearly wrong in exercise of its discretion and thereby occasioned a miscarriage of justice, ( see Mbogo v Shah [1968] EA 93, Pithon Waweru Maina v Thuku Mugiria [1982-88] 1 KAR 171).

[8]The respondent does not appear to be challenging the exercise of discretion by the lower court; and therefore has not taken issue with the fact, per se, that the learned magistrate exercised his discretion in an unjudicial manner in granting conditional stay of the said judgment. In any event, a copy of the ruling has not been annexed to the application to enable the court appreciate the lower court’s reasoning on the matter. It is however manifest that, since the filing of this appeal on January 24, 2019, no steps have been taken by the appellant towards its prosecution, with the result that the respondent has been precluded from enjoying the fruits of the judgment awarded in his favour in 2016.

[9]In the circumstances, I am convinced that, it would be prejudicial to the respondent for the court to countenance this state of affairs. Indeed, from the conduct of the appellant, it can easily be surmised that the appeal was filed for the ulterior purpose of buying time. Hence, I would echo the words of Hon Nyakundi, J Sun Palm Limited & another v David Pius Mugambi [2019] eKLR, that:…The right of access to an appeal court should not be used as an alternative remedy for the unsuccessful litigant to try and delay decree holder from enjoying the fruits of the judgement…'

[10]I therefore find merit in the application dated September 29, 2020. The same is hereby allowed and orders granted as hereunder:(a)The order of stay of execution granted on January 16, 2019 in Mombasa RMCC No 52 of 2016: Springtech (K) Ltd v Vanga Express Ltd be and is hereby set aside entirely.(b)The costs of this application be borne by the appellant.It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 5TH DAY OF OCTOBER, 2022. OLGA SEWEJUDGE