[2022] KEHC 197 (KLR)

Wambua v Kioko (Civil Appeal E135 of 2021) [2022] KEHC 197 (KLR) (15 March 2022) (Ruling)

Neutral citation: [2022] KEHC 197 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal E135 of 2021

MW Muigai, J

March 15, 2022

Between

John Wambua alias Benson Wambua

Appellant

and

Joseph Musembi Kioko

Respondent

(Being an appeal against the Ruling of Hon. E. H. Keago delivered on 28/07/2021 in Machakos CMCC No. 580 of 2014 Joseph Musembi Kioko –vs- John Wambua alias Benson Wambua)

Ruling

1. Vide Notice of Motion Application filed under Certificate of Urgency dated 23rd of August 2021 under Section 1A, 1B and 3A of the Civil Procedure Act and Order 42 & 51 of the Civil Procedure Rules,2010, the Appellant/ Applicant seeks the following orders THAT;a.Spentb.Spentc.Pending the hearing and determination of the Appeal herein, this Honourable court be pleased to order for stay of execution of judgment in Machakos CMCC No. 580 of 2014 , CMCC No. 656 of 2015 and CMCC No. 582 of 2014. d.Costs be provided for .

2. The Application is supported by the affidavit of John Wambua alias Benson Wambua who is the Defendant in Machakos CMCC No. 580 of 2014 , CMCC No. 656 of 2015 and CMCC No. 582 of 2014. He avers that CMCC No. 582 of 2014 was a test suit in which he was found 50% liable and he filed an appeal being Machakos HCCA No. 140 of 2019 which was dismissed.He then filed an appeal at the Court of Appeal being Civil Appeal No. 187 of 2021 which is pending at the Court of Appeal.

3. He then filed an application for stay of execution dated 29th of April 2021 in Machakos CMCC 580 of 2014 pendng hearing and determination of Civil Appeal No. 187 of 2021 which was dismissed on 28th July 2021. He now appeals that decision on the ground that his Appeal will be rendered nurgutory.

4. The Respondent filed a Replying Affidavit dated 27th September 2021 and filed on the same date in which he opines that the application is frivolous, vexatious, bad in law, unattenable and an abuse of the court process as there is no proper appeal before the court and this application is a delaying tactic. He avered that the cause of action arose out of an accident on or about 26th of Januray 2004 and he filed CMCC No. 580 of 2014 whose judgement was entered in his favor and which judgment has never been satisfied by the Appelant who despite being aware of the proceedings never participated in the same. He said that the Application offends Order 42 Rule 6 and Sections 1A, 1B and 3A of the Civil Procedure Act. He opined that he was a man of means.

5. The matter was disposed off by way of written submissions with the Appellant filinmg his submissions on 27th of October 2021 and the Respondent on 29th of November 2021.

Appellant’s Submissions 6. The Appellant while relying on the grounds of the Application , cited Order 42 Rule 6 (2) of the Civil Procedure Rulesand contended that the Respondent’s means are not known and if execution would proceed then the Respondent would not be able to refund the decretal sum. He opined that his Appeal had high chances of success and it would be rendered nurgatory if the orders sought were not granted. Reliance was placed on the case of HE vs SM (2020) eKLR.

Respondent Submissions 7. While citing Order 42 Rule 13 (4) of the Civil Procedure Rules , the Respondent through his counsel submitted that the Appellant ought to have sought stay pending determination of the Appeal at the High Court in HCCA 140 of 2019 which emanated from CMCC 582 of 2014, a test suit that included CMCC 580 of 2014 and CMCC 656 of 2014 or in the alternative, sought stay at the Court of Appeal in Civil Appeal No 187 of 2021.

8. Counsel submited that there was nothing to stay as execution had not issued,that the Respondent would be prejudiced if the orders sought are granted as the cause of action arose seven (7) years ago and he has not recieved compensation to date. Counsel further submitted that the Appellant has not demonstrated that he will suffer any substantial loss if the orders osught are granted and lastly that there was no indication of what security he intends to give. He opined that should stay be granted then it should be conditioned on deposit of half of the decretal sum within thirty (30)days and costs be awarded to the Respondent.Reliance was placed on the case of Nicholas Kiptoo Korir Salat vs Independent Electoral and Boundaries Commission and 6 others [2013] eKLR and Civil Appeal No. 73 OF 2018, Patrick Mutua & Another vs Mutua Nyamai.

Analysis and Determination 9. I have considered the Application and annexures thereto, The Replying Affidavit and the submissions of the parties and I find that the following as issues for determination:-a.Whether this court has jurisdiction to handle this matterb.Whether the Appellant/ Applicant is entitled to the orders sought.c.Who should bear the costs.

10. It is not in dispute that Machakos CMCC No. 582 of 2014 was selected as the test suit for CMCC No. 580 of 2014 , CMCC No. 656 of 2015 and CMCC No. 582 of 2014 in which the Appelant was found 50 % liable for the accident that took place on or about 26th of January 2014.

11. It is also not in dispute that the Appellant filed a first Appeal being Machakos HCCA No. 140 of 2019 which was dismissed and subsequently a second Appeal that is pending at the Court of Appeal being Civil Appeal No. 187 of 2021.

12. In addition, it is not contested that the Appellant filed an application in CMCC No. 580 of 2014 seeking stay of execution in the case before the Court of Appeal which was dismissed and he now comes to this court seeking orders of stay.

13. In the case of Patrick Kalava Kulamba & Another vs. Philip Kamosu and Roda Ndanu Philip (Suing as the Legal HCCA E085. 21 Page 6 Representative of the Estate of Jackline Ndinda Philip (Deceased) [2016] eKLR Justice Meoli held that:“12. For the purposes of this case, the operational words are as underlined above. Thus, whether an application for stay pending appeal has been allowed or rejected in the lower court, the High Court “shall be at liberty…to consider” an application for stay made to it and to make any order it deems fit. The High Court in that capacity exercises what can be termed “original jurisdiction”. And from my reading of the rule, the jurisdiction is not dependent on whether or not a similar application had been made in the lower court, or the fate thereof… [17. So long as an appeal from the substantive decision of the lower court has been lodged, an application under Order 42 Rule 6 (1) of the Civil Procedure Rules can be entertained afresh in the High Court. I believe that was part of the distinction that the Court of Appeal was making in the Githunguri Case concerning the court’s original jurisdiction, vis-à-vis the appellate jurisdiction and the innovation behind Rule 5 (2) b (as it is now). The foregoing has a bearing on the interpretation of Order 42 Rule 6 (6) of the Civil Procedure Rules and in particular the highlighted phrased therein. 18. Similarly, the jurisdiction of the High Court in this case was invoked when the substantive appeal (itself a fresh pleading separate from the suit in the lower court) was filed. It is true that the application for stay of execution was allowed with conditions in the lower court. The wording in Order 42 Rule 6 (1) however does not preclude the Applicant from approaching this court as it has done. 19. I would venture to add that the wording of Order 42 Rule 6 (1) of the Civil Procedure Rules effectively grants the same jurisdiction to this court as an appellate court as Rule 5 (2) (b) does to the Court of HCCA E085. 21 Page 7 Appeal: to entertain an application for stay whether or not the same has already been heard by the lower court and dismissed. The only salient difference is that in the case of the High Court the rule makes it clear that it matters not whether the earlier application for stay in the lower court has been allowed or rejected in the lower court. That is my reading of Order 42 Rule 6 (1). 20. It suffices, in my opinion, in this case, in view of the nature of the application before me, that there is an existing substantive appeal against the judgment of the lower court. To insist in this case that the Applicant must first file a separate appeal on the ruling of the lower court, apart from the judgment would in my view not only lead to confusing duplication of proceedings in respect of the same matter but also cause delay. . The provisions however must be applied under the guiding principles of Article 159 (2) d) of the Constitution. 21. In the circumstances of this case, I consider that driving the Applicant from the seat of justice when there exists a substantive appeal, and in disregard of the full import of Order 42 Rule (6) (1) would amount to raising a technicality, namely, the filing of an appeal on a supplemental matter that actually touches on the appeal where a substantive appeal already exists, above purpose and substance. There may arise in certain cases allegations of abuse of procedure but that must be established.”

14. I note that there is an application for stay that was made in CMCC 580 of 2014 which was part of CMCC 582 of 2014. None of the parties has filed the contents of the appeal at the High Court and as such the nature of the Appeal at the Court of Appeal is not clear to us.

15. Does the presence of a test suit preclude a party from filing an application in a suit that was part of the test suit as is the case here? This was discussed by the Court of Appeal in the case of Kubai Kithinji Kaiga (Suing as the legal representative of the estate of John Kaiga (Deceased) v Kenya Wildlife Service [2021] Eklrwhere the court observed that;“This Court is of the view that it is possible to independently lodge an appeal irrespective of the status of the test suit i.e regardless of whether or not the same has been challenged. In bringing his claim, the Appellant will however have to rely on the proceedings of the file and/or Court that dealt with the test suit, as has been done herein.…The existence of a decision on a test suit which is yet to be challenged does not bar a litigant from appealing a separate decision which was arrived at based on a finding in the test suit. The method of test suit under Order 38 (1) and (2) of the Civil Procedure Rules is described as follows:“Staying several suits against the same defendant [Order 38, rule 1. ]Where two or more persons have instituted suits against the same defendant and such persons under rule 1 of Order I could have been joined as co-plaintiffs in one suit, upon the application of any of the parties with notice to all affected parties, the court may, if satisfied that the issues to be tried in each suit are precisely similar, make an order directing that one of the suits be tried as a test case, and staying all steps in the other suits until the selected suit shall have been determined, or shall have failed to be a real trial of the issues.Staying similar suits upon application by defendant [Order 38, rule 2. ]Where a plaintiff has instituted two or more suits, and under rule 3 of Order 1 the several defendants could properly have been joined as co-defendants in one suit, the court, if satisfied upon the application of a defendant that the issues to be tried in the suit to which he is a party are precisely similar to the issues to be determined in another of such suits, may order that the suit to which such defendant is a party be stayed until such other suit shall have been determined or shall have failed to be a real trial of the issues.”In my respectful view, a test suit is purely a convenient method for trial of multiple suits against the same defendant (or by one plaintiff against several defendants) where the issues in the suits are the same, and it does not take away the right of the individual plaintiffs, or the defendant in any case to challenge the decision in the test suit or its relevant particular suit on appeal, review or other mode of impugning the decision, as the case may be.

16. Having said so, the present test the subject of the Court of Appeal. The decision made in that suit will tricke down to the other suits. The Applicant therefore has a right to file this application independently and the court will determine this on merit.

17. The application is seeking as its main order Stay of execution of judgement pending the hearing and determination of the Appeal herein in Machakos CMCC No. 580 of 2014 , CMCC No. 656 of 2015 and CMCC No. 582 of 2014.

18. Order 42 rule 6(1) and (2) of the Civil Procedure Rules,2010 provides as follows:(1)No appeal or second appeal shall operate as a stay of execution or proceeding 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.(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.

19. The Court of Appeal in the case of Vishram Ravji Halai vs. Thornton & Turpin Civil Application No. Nai. 15 of 1990 [1990] KLR 365, held that;“whereas the Court of Appeal’s power to grant a stay pending appeal is unfettered, the High Court’s jurisdiction to do so under Order 41 rule 6 of the Civil Procedure Rules is fettered by three conditions namely, establishment of a sufficient cause, satisfaction of substantial loss and the furnishing of security. Further the application must be made without unreasonable delay. Apart from that there is no basis for forming the view that the Respondent will not be able to refund the decretal sum if the same is ait over to him.”

20. The Applicant filed this Application on 31st of August 2021 and that of the Chief Magistrate Court on 29th of April 2021 according to the Aplicant’s annexture, 14 days after the judgement was delivered on 15th of April 2021. That therefore means that the application was filed within reasonable time.

21. On the issue of substantial loss being suffered, The Applicant has not presented anything to the court to show that subtantial loss will be suffered if the orders sought are not granted, he only alleged that there is imminent danger of execution and that his Appeal will be rendered nurgatory. That is not sufficient proof of substantial loss. I therefore find that the second ground has not been satisfied.

22. On the issue of security, there is nothing on record to indicate that the Applicant is willing to deposit security in the event the Appeal collapses. This ground has also not been satisfied.

23. The appeal was heard and determiend and dismissed in Machakos HCCA No. 140 of 2019. Since an appeal has been filed in Court of Appeal against the stay of execution should be sought in the Court of Appeal.

24. Consequently,the application fails and is therefore dismissed with costs to the Respondent.It so ordered.

RULING DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 15TH DAY OF MARCH, 2022. M.W MUIGAIJUDGE