Biashara Sacco Society Limited & another v Wang'ombe & another [2023] KECPT 742 (KLR)

Biashara Sacco Society Limited & another v Wang'ombe & another (Tribunal Case 288 of 2020) [2023] KECPT 742 (KLR) (31 August 2023) (Ruling)

Neutral citation: [2023] KECPT 742 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 288 of 2020

BM Kimemia, Chair, J. Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members

August 31, 2023

Between

Biashara Sacco Society Limited & another

Claimant

and

Mugambi Wang'ombe

1st Respondent

veronica wanjiru Mugambi

2nd Respondent

Ruling

Statement of Facts 1. On 2nd September, 2021, this Tribunal made a finding that the Claimant had proved their Claim against the Respondent’s and ordered among others that:i.An order of inhibition be granted against the Respondent’s on this properties LR 5104/56, 5104/57, 5104/58 and 5104/59. ii.An order of Specific Performance for the transfer of suit properties LR 5104/56, 5104/57, 5104/58 and 5104/59 to the 2nd and 3rd Claimant’s jointly.iii.Costs and interest at the tribunal rates for the Claim and dismissed Counter-claim to be paid to the Claimants’ by the Respondent’s.

2. On 30th September, 2021, the Respondent’s in this suit filed an Application at the High Court seeking orders for Stay of Execution of this Tribunal’s judgment of 2nd September, 2021 together with the resultant decree and other Consequential Orders pending this hearing and determination of their Appeal.

3. On 17th March, 2022, the High Court made a funding that the Respondent’s in this suit had met the threshold for granting of Stay of Execution pending the hearing and determination of the Appeal before it. It granted the stay of execution for 30 days on the condition that a sum of Kshs. 12,000,000/= be paid by the Respondent’s in an interest earning account in the names of the respective advocates for the parties.

4. On the lapsing of the High Court orders of 17th March, 2022, on 24th May, 2022, the Claimants’ in this case filed a Notice of Motion before thus Tribunal seeking orders that:i.The Tribunal be pleased to sign all the necessary documents to effect transfer of LR 5104/56, 5104/57, 5104/58 and 5104/59 to the 2nd and 3rd Claimants’.ii.That the Chief Land Registrar to dispense with the 1st Respondent’s copy of the ID, P.I.N and Passport Photographs in transferring the suit properties.iii.That the cost of the Application be borne by the Respondent’s.

5. In relation to that Application, on 26th July, 2022, this Tribunal gave directions for service and response, and with submissions done, there is only one question remaining to be determined – What happens in the absence of stay.

What happens in the absence of Stay?Grants of stay of execution are provided for under Order 42 rule 6 (1) of the Civil Procedure Rules which state as follows:“No appeal or a 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 an Application being made, to consider such Application and to make such orders thereon as mat to it seem just, 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 the orders set aside.” 6. The key part of the rule above is at the beginning – no appeal or a 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.

7. In the persuasive decision of Gianfranco Momentu & Another Vs Africa Merchant Assurance Co. Ltd [2019]eKLR the court observed that:“.... it is trite that the winner of litigation should not be denied the opportunity to execute the decree in order to enjoy the fruits of his judgment in case the appeal falls”

8. The conditions of the grant of Stay by the High court were not complied with, and it is this Tribunal’s interpretation of Order 42 rule 6 (1) that in the event of no compliance or lapse of stay, then the Tribunal’s judgment of 2nd September, 2021 together with the resultant Decree and other Consequential Orders now come into full effect as the orders for stay at the High Court would have been vacated automatically.

9. It is our considered opinion that courts should not be used to assist litigants to delay Execution of Decrees through filing of vexatious Applications and Appeals and as such order:iThe signing of all the necessary documents to effect the transfer of LR 5104/56, 5104/57, 5104/58 and 5104/59 to the 2nd and 3rd Claimants’.iiThe Chief Land Registrar to dispense with the 1st Respondent’s copy of the ID, P.I.N and Passport Photographs in transferring LR 5104/56, 5104/57, 5104/58 and 5104/59 to the 2nd and 3rd Claimants’.iiiThat the Cost of this Application be borne by the Respondent’s.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 31ST DAY OF AUGUST 2023. HON. BEATRICE KIMEMIA CHAIRPERSONHON. J. MWATSAMA DEPUTY CHAIRPERSONHON. BEATRICE SAWE MEMBERHON. FRIDAH LOTUIYA MEMBERHON. PHILIP GICHUKI MEMBERHON. MICHAEL CHESIKAW MEMBERHON. PAUL AOL MEMBERTRIBUNAL CLERK JEMIMAH/JONAH