[2022] KEHC 14052 (KLR)

Waweru v Ngama & another (Civil Appeal 273 of 2018) [2022] KEHC 14052 (KLR) (Civ) (19 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14052 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 273 of 2018

JK Sergon, J

October 19, 2022

Between

James Njomo Waweru

Appellant

and

Paul Kibera Ngama

1st Respondent

Robert Tanui

2nd Respondent

Ruling

1. The appellant/applicant in this instance has brought the Notice of Motion dated 2nd September 2022 supported by the grounds set out in its body and the facts deponed in the supporting affidavit. The applicant sought for the substantive order for stay of execution of the ruling delivered on 19th August, 2022 and all consequential orders and decree, pending the hearing and determination of the appellant’s Appeal.

2. The respondent opposed the Motion by filing the grounds of opposition dated 15th September 2022

3. The applicant avers he filed an application seeking orders of 24th March 2022 be set aside and the Appeal re-admitted but it was dismissed on 19th August 2022 and the applicant being aggrieved preferred an appeal of the said ruling.

4. The applicant avers that he has filed a Notice of Appeal against the said ruling and prays for stay of the execution as well as the 1st respondent has issued a notice of execution and may execute the applicant’s properties to his detriment.

5. The applicant further avers that parties jointly opened an interest earning account held together with the respondent and remitted 1,764,925. 50/= of which the respondent withdrew the funds from the joint account without due notice to the applicant and is threatening to execute and as such the applicant will suffer loss if the orders of execution are not granted.

6. The respondent in its grounds of opposition noted that the applicant is in violation of the court orders issued on August 19, 2022, and is not entitled to any discretionary relief. It also claimed that the application dated February 9, 2022 is frivolous and constitutes a serious abuse of the legal system.

7. The respondent further states that it is now four years since the lower court gave judgment on 7th March 2018 and over 8 years since the suit in the lower court and years since the accident occurred and the 1st respondent is still undergoing further medical treatment related to the accident after spending Kshs.1,500,000/= in hospital bills and over Kshs.1,000,000/= in subsequent operations, physiotherapy ,wheel chair and surgeries and that he will be highly prejudiced by any further delays in having this matter finalized and execution concluded.

8. I have considered all the pleadings and issues raised by both parties. In my view, the only issue for determination is whether the court can grant an order of stay of execution pending the hearing and determination of the Appeal.

9. The principles guiding the grant of an application for stay of execution pending appeal are well settled. These principles are provided under Order 42 rule 6(2) of the Civil Procedure Rules which provides as follows:No order for stay of execution shall be made under subrule (1) unless—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; andsuch 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.

10. Further, it is also trite law and as evidenced by precedents that an application for stay of execution pending appeal requires that there be a positive requirement/or order that is capable of being stayed.

11. In the case of Co-operative Bank of Kenya Limited –vs- Banking Insurance & Finance Union (Kenya) [2015] eKLR, the Court of Appeal (Kantai J.A) held as follows: -“…An order for stay of execution [pending appeal] is ordinarily an interim order which seeks to delay the performance of positive obligations that are set out in a decree as a result of a Judgment. The delay of performance presupposes the existence of a situation to stay – called a “positive order” – either an order that has not been complied with or has partly been complied with. See, for this general proposition, the holding of the Court of Appeal of Uganda in Mugenyi & Co. Advocates v National Insurance Corporation (Civil Appeal No.13 of 1984) where it was stated:‘….. an order for stay of execution must be intended to serve a purpose …..”

12. The application as filed by the applicant/appellant requires this court to stay the ruling delivered on 19th August, 2022. I have looked at the said ruling and find that there is nothing that this Court has ordered to be done or restrained from being done. The Court in this case only dismissed an application dated 6th June, 2022 that required it to re-admit this appeal and set it down for hearing and orders made by the Hon. Judge Chepkwony made on 24th March be set aside. That further, another application dated 4th July 2022 that required that the consolidated appeals be reinstated for hearing and determination in the normal way with time to file and serve the records of appeal

13. The applicant herein has not brought before this court an order that this court can grant stay of execution pending the hearing and determination of the Appeal. The ruling delivered on the 19th August, 2022 is a negative order that is not capable of being stayed.

14. The upshot of all these is that the appellant’s application dated 2nd September, 2022 lacks merit and is hereby dismissed with costs.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 19TH DAY OF OCTOBER, 2022. .........................J. K. SERGONJUDGEIn the presence of:..............for the Appellant/Applicant..............for the 1st Respondent..............for the 2nd Respondent