[2023] KEHC 24927 (KLR)

Wafula v Mbuvi (Civil Appeal 86 of 2022) [2023] KEHC 24927 (KLR) (7 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24927 (KLR)

Republic of Kenya

In the High Court at Malindi

Civil Appeal 86 of 2022

SM Githinji, J

November 7, 2023

Between

Delaila N Wafula

Applicant

and

Catherine Nundu Mbuvi

Respondent

(Being an Appeal from the Ruling delivered on the 3rd day of October, 2022 at the Chief Magistrate’s Court at Malindi by Hon Irene Thamara in suit No. E217 of 2022)

Ruling

1. This ruling is in respect of the Applicant’s notice of motion application dated 6th October 2022 brought under Section 1A and 3A of the Civil Procedure Act; and order 42 rule 6(1) and (2) of the Civil Procedure Rules, 2010. The Applicant seeks the following orders; -1. Spent.2. Spent.3. That there be stay of execution of the ruling delivered in the CMCC Suit No. 217 of 2022 on the 3rd day of October 2022, pending the hearing and determination of this appeal.4. That the Respondent be ordered to release the Applicant’s properties she is illegally holding unconditionally pending the hearing and determination of this appeal.5. That costs of this application be in the cause.

2. The application is premised on the grounds on the face of it and the supporting affidavit of Delaila Nasimiyu Wafula, the Applicant herein, sworn on 6th October, 2022. The Respondent opposed the application. She filed a Replying Affidavit sworn on 28th November 2022.

3. The gist of the application is that the Applicant instituted Suit No. 217 of 2022 in the subordinate court seeking inter alia the release of his property allegedly confiscated by the Respondent, her former landlord, for rent arrears. The suit was struck out on 3rd October 2022 on grounds of lack of jurisdiction. In her ruling, Hon. Thamara (RM) opined that the claim should have been filed at the Business and Rent Tribunal. Dissatisfied with that finding, the Applicant has filed the present appeal and application.

4. The court directed that the application be heard by way of written submissions. On 20th July 2023 when the matter came up for mention, none of the parties had filed submissions. The court granted the Applicant 7 days to file and serve her submissions, and the Respondent 7 days upon service of the same. As at the time of writing this opinion, there were no submissions on record from either side.

5. The provisions of Order 42 (6) of the Civil Procedure Rules, 2010 provide guidelines in an application for stay of execution and states that:No order for stay of execution shall be made under sub rule (1) unlessa.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; andb.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.

6. In Butt v Rent Restriction Tribunal (1982) KLR 417 the Court of Appeal held that the general principle in granting or refusing stay is if there is no overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should that appeal court reverse the trial court’s discretion.

7. There is no doubt that the present application was filed timeously without unreasonable delay. However, I acknowledge that the ruling appealed against allowed a notice of preliminary objection on jurisdiction. As a result, the trial court merely dismissed the suit with costs. In my view there is nothing to be executed under the said ruling except only costs. The trial court did not order any party to do anything or refrain from doing something. There is nothing arising from the trial court’s ruling for this court to exercise discretion in favour of the Applicant. I have equally perused the record, there is no inventory of the properties alleged to have been confiscated by the Respondent.

8. In the ultimate and guided by the reasoning in Western College of Arts and Applied Sciences v EP Oranga & 3 others [1976] eKLR, I find that the present application is unmerited. It is hereby dismissed with costs.

RULING READ, SIGNED AND DELIVERED VIRTUALLY AT MALINDI THIS 7TH DAY OF NOVEMBER, 2023. S.M.GITHINJIJUDGEIn the absence of; -Mr Ragira for the ApplicantMr Martini for the RespondentParties be notified....................................S.M. GITHINJIJUDGE7/11/2023