[2022] KEHC 14129 (KLR)

Verjee v Attorney General & 3 others (Civil Appeal E012 of 2020) [2022] KEHC 14129 (KLR) (5 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14129 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal E012 of 2020

OA Sewe, J

October 5, 2022

Between

Salim Verjee

Appellant

and

Attorney General

1st Respondent

Ronald De Mello

2nd Respondent

Inspector General of Police

3rd Respondent

Hamisi Bakari Kodza

4th Respondent

Ruling

[1]The Notice of Motion dated 17th September 2021 was filed by the appellant. He approached the Court pursuant to Article 159(2)(a), (d) and (e) of the Constitution, Sections 1A, 1B, 3A of the Civil Procedure Act, Chapter 21 of the Laws of Kenya, Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules seeking the following orders:(a)Spent(b)Spent(c)That pending the hearing and determination of his intended appeal, the Court be pleased to stay the judgment delivered on 11th August 2021 and the proceedings and subsequent judgment in Mombasa CMCC No. 1621 of 2014;(d)That the Court be pleased to make such further or other orders as it may deem just and expedient in the circumstances of this case;(e)That the costs of the application be provided for.

[2]The application was predicated on the grounds that the appellant is aggrieved by the judgment of the Court passed herein on 11th August 2021; and that he desires to appeal the same to the Court of Appeal, to which end he has already filed a Notice of Appeal. It was the conviction of the appellant that the intended appeal has overwhelming chances of success; and therefore that he stands to suffer loss and prejudice unless stay orders are granted as prayed by him. He pointed out in his Supporting Affidavit that the effect of the impugned Judgment was that the lower court was at liberty to proceed with and hear the primary suit to conclusion, thereby undermining the provisions of Article 50 of the Constitution and rendering his appeal nugatory.

[3]In support of his application, the appellant annexed copies of the Notice of Appeal dated 20th August 2021, the Judgment dated 11th August 2021 and the written submissions filed before the lower court, among other documents. A perusal of the Judgment shows that the appeal was an interlocutory one, and that the only issue identified by the Court for determination was whether the trial court erred in granting leave to the 2nd respondent to file a Verifying Affidavit to the Counterclaim long after the 2nd respondent had been heard to conclusion.

[4]Accordingly, directions were given that the application be served on the 2nd respondent; and that a response by the 2nd respondent be filed within 7 days of such service. The 2nd respondent complied and filed a Replying Affidavit on 28th August 2021. His posturing was that the appellant had not made out a case for either stay of the judgment herein or the proceedings of the lower court. He averred, at paragraph 5 of his Replying Affidavit, that the lower court matter was scheduled for mention on 2nd November 2021 to confirm the filing of written submissions with a view of taking a judgment date; and added that, in the circumstances the appellant stands to suffer no prejudice. Thus, the 2nd respondent prayed for the dismissal of the application, terming it frivolous and an abuse of the process of the Court.

[5]The application was urged by way of written submissions, which were highlighted on 9th June 2022. In his submissions dated 9th November 2021, Mr. Mkan for the appellant proposed the following issues for determination:(a)Whether or not the application was brought without inordinate delay;(b)Whether or not the appellant has shown that he is likely to suffer substantial loss if stay orders are not granted;(c)Whether the intended appeal is arguable and would be rendered nugatory if the stay order is not granted;(d)Who should pay the costs of the application?

[6]In respect of the 1st issue, Mr. Mkan urged the Court to find that the instant application was brought without inordinate delay; and that the Notice of Appeal was also filed within the statutory timeline. He added that the appeal has already been lodged and the Record of Appeal served on the 2nd respondent and the Attorney General. On whether the appellant has demonstrated substantial loss, Mr. Mkan urged the Court to note that the appellant had already complied with the directions of the lower court and filed his written submissions on 17th July 2020. He further pointed out that the 2nd respondent had already filed a Bill of Costs dated 24th September 2021 and was poised to proceed with taxation and execution unless stay was granted.

[7]Mr. Gathu for the 2nd respondent relied on his written submissions filed on 26th October 2021. He posited that the application lacks merit on both fronts of stay of execution and stay of proceedings. He relied on Peter Kariuki Mburu & Another v Neema Shah [2021] eKLR in which the case of Global Tours & Travels Limited, Nairobi High Court Winding Up Cause No. 43 of 2000 was followed with regard to the applicable principles for stay of proceedings. According to Mr. Gathu, the appellant is in effect asking the Court to sit on appeal on its decision; which ought not to be countenanced. He further posited that the appellant is merely out to buy time by filing frivolous applications. On the authority of Said Sweilem Gheithan Saanum v Commissioner of Lands & Another [2015] eKLR, counsel urged the Court to find that the appellant has not met the threshold for stay of proceedings.

[8]As for stay of the judgment of this Court, Mr. Gathu made reference to Order 42 Rule 6 of the Civil Procedure Rules and submitted that no effort has been made by the appellant to satisfy the conditions set out thereunder. He thus citedPremier Industries Limited v Stephen Kilonzo Matiliku [2021] eKLR and A N M v V N [2021] eKLR for the proposition that, if there is no evidence of substantial loss to the applicant, it would be a rare case where an appeal would be rendered nugatory. Consequently, Mr. Gathu prayed that the appellant’s Notice of Motion dated 17th September 2021 be struck out or dismissed with costs to the 2nd respondent.

[9]I have given careful consideration to the application, the affidavits filed in respect thereof, as well as the written and oral submissions made on behalf of the parties thereto by learned counsel. The application raises the following issues for determination:(a)Whether this court ought to grant stay of proceedings of CMCC No. 1621 of 2014(b)Whether this court ought to grant Stay of Execution pending Appeal of the judgment delivered on 11th August, 2021 and intended judgment in CMCC No. 1621 of 2014

[a] On whether this court ought to grant stay of proceedings of CMCC No. 1621 of 2014 [10]The appellant has sought for an order of stay of proceedings of the Civil Suit No. 1621 of 2014 pending hearing and determination of his appeal before the Court of Appeal. He has averred that he is dissatisfied with the decision of this court made on 11th August, 2021 that upheld the subordinate court’s decision that granted the 2nd respondent leave to file a verifying affidavit belatedly. Whereas it is within the discretion of the Court to grant stay of proceedings, such discretion must be exercised judiciously, as guided by the provisions of Order 42 Rule 6 of the Civil Procedure Rules, which states:1. No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except 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.

[11]And, in Re Global Tours & Travel Ltd HCWC No.43 of 2000 Ringera, J (as he then was) held that: -…As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice .... the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of case, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously…”

[12]Additionally, in the case of Kenya Wildlife Service v James Mutembei [2019] eKLR it was held thus: -"…Stay of proceedings should not be confused with stay of execution pending appeal. Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on right of access to justice, right to be heard without delay and overall, right to fair trial. Therefore, the test for stay of proceeding is high and stringent…”

[13]With the foregoing principles in mind, it is my considered view that it would not be in the interest of justice to exercise court’s discretion and grant stay of proceedings as it will only serve the purpose of further delaying the matter before the subordinate court.

[b] Whether this court ought to grant Stay of Execution pending Appeal of the judgment delivered on 11th August, 2021 and intended judgment in CMCC No. 1621 of 2014 [14]The appellant seeks to stay the judgment of this court dated 11th August, 2021, by which the appellant’s interlocutory appeal was dismissed and an order made that the lower court suit be heard on a priority basis. The conditions for such stay are set out in Order 42 Rule 6(2) of the Civil Procedure Rules, thus: -(2)No order for stay of execution shall be made under sub- rule (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.

[15]Thus, the three conditions for granting an order for stay pending appeal are that one must establish that he/she will suffer substantial loss; that the application has been brought without undue delay; and the readiness to provide such security as may be ordered by the court. There appears to be no dispute that the application was brought without unreasonable delay and therefore the two considerations to pay attention to are, whether the appellant has demonstrated substantial loss; and if so, the question of security.

[16]I have looked at the appellant’s Supporting Affidavit and noted that there is no demonstration therein that the stands to suffer substantial loss. No proof or sufficient explanation has been given in the affidavit on the prejudice that he is likely to suffer should the stay of execution not be granted. I have also perused the judgment of the court dated 11th August, 2021. As it stands, the appellant’s appeal was dismissed and thus there is nothing to be stayed.

[17]Indeed, in James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR observed that: -"…No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process.The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal ...In the case of Silverstein N. Chesoni [2002] 1KLR 867, and also in the case of Mukuma V Abuoga quoted above. The last case, referring to the exercise of discretion by the High Court and the Court of Appeal in the granting stay of execution, under Order 42 of the CPR and Rule 5(2) (b) of the Court of Appeal Rules, respectively, emphasized the centrality of substantial loss thus:“…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory….”

[18]As for the prayer that this court stays the judgment in CMCC No. 1621 of 2014, that prayer is declined for being pre-emptive in nature. There is no indication that the subordinate court has delivered any judgment and if it has, the same has not been placed before this court for consideration. The prayer for stay of the lower court judgment is therefore premature and is accordingly untenable.

[19]It is for the foregoing reasons that I find no merit in the application dated 17th September, 2021. The same is accordingly hereby dismissed with costs.It is so ordered.

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