[2015] KEHC 8338 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

COMMERCIAL AND ADMIRALTY DIVISION

CIVIL SUIT NO. 20 OF 2012 (O.S)

ZINGO INVESTMENTS LIMITED………………………………………....….PLAINTIFF

- VERSUS-

KENYA MEAT COMMISSION………………………………………............DEFENDANT

RULING

The defendant’s application is for a stay of execution pending the hearing and determination of the Application. In effect, immediately upon the determination of the application, the order for stay of execution, if it had been issued, would automatically lapse.

The defendant also sought leave of the court to appeal out of time.

The plea for stay of execution was prompted by the steps which had been undertaken by ELAM NGASE LUMWAJI of DOMICILE AUCTIONEERS SERVICES, to execute the Decree against the defendant. According to the defendant, the Auctioneers had, on 1st April 2015, served a Proclamation upon the defendant.

By the said Proclamation, the Auctioneers declared that the vehicles which they had attached would be sold after the lapse of 14 days. It is that threat of the sale of its vehicles which prompted the defendant to file the current application.

In the application, the defendant also sought the setting aside of the orders made on 28th October 2014, when the defendant’s application dated 9th April 2014 was dismissed.

If the order made on 28th of October 2014 was set aside, the application dated 9th April 2014 would be reinstated for Hearing.

According to the applicant, the application was dismissed because of a mistake made by the advocate for the defendant. The said advocate failed to attend court on 28th October 2014, leading to the dismissal of the defendant’s application, on the grounds that the defendant failed to prosecute the said application.

The advocate for the defendant failed to prosecute the application because he did not attend court on the material date.

The application dated 9th April 2014 sought, inter alia, an order to review the Ruling of Mabeya J, which was delivered by Havelock J. on 21st March 2014.

In his Ruling, Mabeya J. adopted the Arbitrator’s Award dated 19th July 2013, as a Judgement of the Court. The learned Judge also awarded to the plaintiff the costs of both the suit as well as the costs of the application dated 8th October 2013.

By the same said Ruling, the learned Judge dismissed the Defendant’s application dated 12th November 2013. That was an application to set aside the Arbitration Award.

The rejection of the defendant’s quest to set aside the Award, paved the way for the Court to adopt the Arbitrator’s Award.

When the present application first came before me, on 10th April 2015, I gave a conditional order for stay of execution. I ordered the defendant to deposit the decretal amount in a joint interest-earning Account, within 14 days. The said Account was to be opened in the names of the advocates for both parties.

The court further directed that if there was any difficulty in opening the joint Account, the defendant would be at liberty to deposit the decretal amount in court.

By my calculations, the decretal amount should have been deposited in either the joint interest-earning account or in court, by 25th April 2015. However, the evidence made available to the court shows that the money was deposited in court on 27th April 2015.

Following the slight delay in meeting the terms for stay of execution, the plaintiff got auctioneers to proceed with the process of attachment of the defendant’s assets.

However, the defendant stopped the auctioneers from carting away the attached goods from the defendant’s premises. In the light of the defendant’s said action, the plaintiff submitted that that constituted contempt of court. Therefore, the plaintiff told the defendant that when the application next came up before the court, on 6th May 2015, the plaintiff planned to ask the court to deny the defendant any audience.

The record of the proceedings on 6th May 2015 show that the plaintiff did not insist that the defendant be denied audience. Instead, both parties informed the court that there was likelihood that they would settle the matter.

In order to allow the parties the opportunity they needed to try and amicably settle the matter, the court adjourned the case to 4th June 2015. And when the case was next in court, (on 4th June 2015), the parties informed the court that they wished to proceed with the hearing of the defendant’s application dated 2nd April 2015.

In the light of those conscious decisions of the parties, the plaintiff must be deemed to have abandoned its intention, to have the defendant barred from being given audience by the court.

Furthermore, both parties actually set down an agreed sequence for the filing of their respective submissions. That therefore implies that the plaintiff had agreed that, notwithstanding the delay in depositing the decretal amount, the defendant should be accorded an opportunity to address the court on its application.

In any event, the delay in depositing the decretal amount could not, of itself, constitute a bar to the defendant being heard by the court. The delay could have given to the plaintiff reason to proceed with execution, because there would have been no reason for the plaintiff to withhold its hands after the defendant had defaulted in meeting the conditions for the stay of execution.

Although the auctioneers appeared to take steps to execute the Decree immediately after the lapse of time when the defendant should have deposited the decretal amount, the said action was not irregular.

The plaintiff submitted that there was no longer any Award which was capable of being set aside, as the Award had already been adopted as a Judgement of the court. The plaintiff therefore believed that the defendant’s attempt to set aside the award was an exercise in futility.

If the defendant was seeking to set aside the award, at this stage, the court would tell him in no uncertain terms that it was too late in the day to do so. The first reason for so saying is that the defendant’s application to set aside the award was already heard and dismissed. Therefore, the defendant cannot return to the same court to seek the same relief again.

Secondly, the court already adopted the Award as a Judgement of the Court, and therefore the Award was no longer available for challenge. It had already been superceded by being adopted and converted into a Judgement of the court.

The defendant appears to have been well aware of this fact as it did file the application dated 9th April 2014, through which it sought the review of the Ruling delivered on 21st March 2014.

The defendant now says that it is keen to have the Ruling delivered on 21st March 2014, reviewed and/or appealed against.

It is interesting to note that the defendant did, in its application dated 9th April 2014, expressly state thus;

“6. That no appeal has been preferred by the Defendant/Applicant against such part of the Ruling as the Defendant/Applicant seeks to have it reviewed”.

The defendant was only keen on seeking review, as at 9th April 2014. It is thus surprising that the defendant should now be interested in a review and/or an appeal. Indeed, it is not just surprising, but it also gives rise to the question whether or not a party can seek both a review and an appeal arising from the same Ruling.

I will not answer that question now, as it does not arise for determination at his stage.

The plaintiff has emphasized the finality of Arbitral Awards, so that an appeal cannot lie from such awards. That is an argument which would be available to the plaintiff if the defendant lodged an appeal.

At present, there is no appeal before me.

If anything, going by what the defendant said in April 2014, there was no appeal which the defendant had filed. That would, perhaps, explain the reason why the defendant was asking this court as follows;

“4. In the alternative this Honourable Court be pleased to allow the filed notice of appeal as duly filed”.

The intended appeal is not against the Arbitral Award. It is against the Ruling delivered on 21st March 2014, adopting the Award as a Judgement of the Court.

The plaintiff submitted that once the Award was adopted as a Judgement of the Court, it was no longer available as an Award.

In the circumstances, when the plaintiff submitted that the Arbitrator’s decision was final and binding, the question which arises is whether or not such finality of the Award could be pronounced as subsisting, whilst, in the same vein, it was being argued that the Award had been superceded by having it adopted as a Judgement of the court.

The defendant relied on the case of KENYA AGRICULTURAL AND LIVESTOCK RESEARCH ORGANISATION Vs. NJAMA LIMITED, HCCC No. 514 of 2014, for the preposition that it was against Public Policy for an arbitrator to apply double standards. Whereas I believe that that is the correct legal position, I find that the defendant did not demonstrate to this court that there was any application of double standards.

Nonetheless, I hasten to add that the determination of the issues before me, do not require me to make any definitive determination on the correctness or otherwise of the role performed by the arbitrator.

The defendant also placed reliance on the case of PAUL CHEGE & 3 OTHERS Vs CHARLES K. GITHIOMI Hccc No. 650 of 2013 for the preposition that the court has a discretion in determining whether or not to grant a stay of execution.

Lady Justice R.E. Ougo expressed herself thus;

“Granting a stay of execution under Order 42 is a matter of discretion of the court, and has to be exercised judiciously”.

The learned Judge proceeded to stay execution pending the hearing and determination of the pending appeal. The stay was conditional upon the deposit of Kshs. 400,000/- in court, within 14 days.

In this case the defendant has not yet filed an appeal. It was asking the court for leave to appeal out of time. Therefore, the defendant could not, and did not, seek stay of execution pending an appeal which was yet to be filed.

The defendant also relied upon the decision of J.K. Sergon J. in IBRAHIM MOHAMED & ANOTHER Vs. ALPHONSE LWANGA OWUOR Hccc No. 104 of 2015. In that case, the learned Judge held that the delay of 3 months was unlikely to prejudice the Respondent in a manner which could not be compensated by an award of costs.

Secondly, the appellants were allowed 10 days within which to file their Memorandum of Appeal.

Finally, the court stayed execution, on condition that the appellants provided security, by depositing the decretal amount in court.

In like vein, I find that the delay in bringing the present application did not give rise to such prejudice as could be incapable of being remedied with an award of costs.

Secondly, the defendant had already deposited the decretal amount in court. Therefore, there is now available, security for the due performance of the Decree in the event that the defendant’s appeal was not successful.

In the circumstances, I direct that the defendant should file its record of appeal within the next 14 days. During the period of the next 14 days, there shall be a stay of execution.

Costs of the application dated 2nd April 2015 shall abide the outcome of the appeal. If the appeal succeeds, the costs of the application shall be awarded to the defendant. But if the appeal does not succeed, for any reason, the plaintiff will have the costs of the application.

It is so ordered.

DATED, SIGNED and DELIVERED at NAIROBI this1st dayof October2015.

FRED A. OCHIENG

JUDGE

Ruling read in open court in the presence of

Muriithi for the Plaintiff

Miss Mumbi for Keengwe for the Defendant

Collins Odhiambo – Court clerk.