Business Capital Access Limited & Jeremiah Kiarie Muchendu t/a Icon Auctioneer v Mary Mumbua Mutuku & Peter Mutuku Mukanda [2015] KEHC 7700 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

CIVIL  APPEAL CASE NO. 326  OF 2014

BUSINESS CAPITAL ACCESS  LIMITED…..…1ST APPELLANT

JEREMIAH KIARIE  MUCHENDU T/A

ICON AUCTIONEER…………………………...2ND APPELLANT

VERSUS

MARY MUMBUA MUTUKU………………….1ST RESPONDENT

PETER MUTUKU MUKANDA ………………2ND RESPONDENT

RULING

Before  this court for determination is  an application by way of Notice of Motion dated 31st July 2014 by the appellant/applicants Business  Capital  Access Ltd  and  Jeremiah Kiarie Muchendu T/A Icon Auctioneer  seeking orders  that:-

1. Spent

2. There be stay of execution pending the hearing  and determination  of the appeal.

3. There be stay of proceedings at the lower  court pending  hearing and determination of the appeal herein.

4. The proceedings in the lower court’s file be typed  on a priority basis  to  hasten the  preparation of the record  of appeal.

5. Costs of the appeal (six) be provided for the  application is premised  on the grounds that:

1. The learned  magistrate erred  by making blanket  order compelling the  appellants  to pay  the sum of kshs 600,000 to the court  without any basis   whatsoever.

2. The motor vehicle registration  number KBC 461N, Toyota Vitz 2001 model which is the subject  matter  of  the lower court  proceedings  cannot be valued at even shs 200,000 in the year 2014.

3. That similarly the party and party  costs  in the subordinate  courts in the lower court  suit cannot  be more than  kshs  80,000 on the higher scale  as provided  for in the remuneration order.

4. That item No. 4 of the order made  by the learned  magistrate is totally contradictory and takes away the  rights of the appellants  I finality  as it renders the entire suit nugatory and the same should be reviewed.

5. That  the essence of depositing money in court is to be held  in stake pending  the hearing  and determination of a suit  in the  current circumstances   the learned magistrate  orders the release of the money  within  90 days  to the plaintiffs.

The application is further  supported by the affidavit  of Njage Makanga  the director of  the 1st  appellant  company.  Mr Makanga  deposes  that the trial magistrate  erred  by not giving their counsel audience in  an application for review  of orders earlier  issued on 26th May2014 without any  just cause or reasons whatsoever .

In addition, that the reason for  filing the application for review  late by a day was that the subject  matter of the suit to hit  motor vehicle registration No. KBC 461N Toyota Vitz model 2001  was sold  in the year 2011 and took sometime  before they could obtain  valuation report  for the said motor vehicle which reasons were well  laid out  in the said application.  He annexed ‘NM1’ copy of the valuation report.

Further, that the magistrate in the orders  issued on 26th May  2014  made an order that the appellants  deposit  shs 600,000 being  the cost  of the  motor vehicle  in issue  together  with costs  in court pending the hearing  and determination of the main suit  in the lower court.

That as at May 2011 the value of the subject motor vehicle  was shs 350,000 two months  before it  was sold .  That  the party to party costs could not be more than 80,000 on the higher  scale  and therefore cumulatively the court should  have made an order for the  deposit  of shs 400,00/- at most.

That  the magistrate contradicts  item  1 and 4  of the order allowing the plaintiff  to collect the amount of money deposited  in court   within 90 days  irrespective of the status  or the outcome of the hearing  of the main suit, which  order  is totally  prejudicial against  the appellants as the  item  No. 4  totally extinguishes  the rights of the appellants  without being heard.

That  the motor vehicle cannot be valued at  200,000/- in 2014  hence the  magistrate  misdirected  herself  in giving  the value of the motor vehicle  without any legal basis or documentary evidence.

That  the magistrate made an ambiguous  order.

The respondents filed replying affidavit  sworn by Peter Mutuku  Mukanda  on 14th October 2014  on behalf  of the 1st  respondent  Mary Mumbua Mutuku  and on his own behalf.

He contends that the appellant’s affidavit  and application contain false  and misleading averments.

That the respondents  did by chamber  summons dated 17th December 2010 seek  for  a prohibitory  injunction restraining  the appellants  from selling, alienating  transferring, wasting or interfering  with their  motor vehicle  KBC  461N Toyota Vitz pending hearing and determination of the suit.

That the said  application was allowed bide ruling  of  Honourable Kimondo J  on 16th March 2012  which order  was served  upon the  appellants  and their advocates  but there  was no compliance .  See exhibit PMM-1.

That the appellants  then filed an application for review  before Honourable Justice Kimondo  which application was also dismissed  with costs  as shown  by exhibit PMM2.

That the  application dated  7th October  2013   was for committal to civil jail  as shown by PMM3 copy of the  said application and ruling  delivered on 4th April 2014.  That the shs 600,000/- was a penalty  imposed  by the court  for contempt  of court  not based  only on the value of  the motor vehicle.

That the magistrate  was right in imposing  the penalty considering  the value of  the motor vehicle  and that there was  no truth  that the motor vehicle  was valued at   shs 350,000/-.

That there is no contradiction in the orders  of the magistrate  as they are  meant to safeguard  the integrity  of the court.

That this  application is an  abuse of the  court process  and any stay  will amount to condoning impunity and disregard  for court orders.

That no appeal was filed  against  the orders of Honourable justice Kimondo hence  this application lacks merit.

On 13th November,2014  the appellants filed a supplementary  affidavit  to the effect that  the interim  orders issued  pursuant  to a chamber  summons dated                    17th December 2010 lapsed  on 16th March 2011 and were never  renewed  or extended  hence the respondents  lost  the protection  of the court.

That the  said chamber summons  was canvassed  by way of  written submissions notwithstanding the fact  that the interim orders had  lapsed  as aforesaid.

That the matter was first handled  by Honourable Justice Njagi  but was  ultimately  placed before Honorable Kimondo J  who delivered  a ruling on 16th March 2012  exactly one year after the lapse of  the interim orders.

That  the orders  of Honourable Kimondo  were incapable  of enforcement  as the motor vehicle  was sold  to a third  party  in July 2011 as shown by NM2 copy sale  agreement and  that the motor vehicle  was registered  in the 1st appellant’s  name with consent  of 2nd respondent.

That Honourable Kimondo  transferred the matter to the lower court  for  hearing wherein contempt proceedings were  commenced  culminating  to this appeal.  He maintains  that shs 600,000/- ordered  to be deposited  in court was  the value  of the motor vehicle  as  per the order of the magistrate  as shown by ‘NM2’the said  order.

That  the order does not  refer to any  punishment  or at  all and that the  motor vehicle  was valued  at shs 350,000/-  in 2011 and no other  valuation report  controverted  that evidence by the appellant .  The parties  agreed to  dispose  of the appeal by the way of written submissions  with the  appellant’s counsel filing theirs  on 15th December 2014  and the respondent’s  counsel  filing theirs on 3rd February 2015.

The appellant’s written  submissions  replicated the grounds  and affidavits in support  of the application as filed  and I need not reproduce the submissions  as they are fully covered in the supporting  and supplementary affidavits  on record  which I have exposed  above .

The respondent’s submissions  on the other  hand  need some  deeper  consideration as they  went notch  higher then what is  contained  in the replying affidavit  of  Peter Mutuku Mukanda  on 14th October  2014.

The respondents submitted that the  applicant do not deserve  the orders  sought as they  have not  satisfied  the  court on the conditions set out in  Order  42 Rule 6  of the Civil Procedure Rules which govern grant of stay of execution pending appeal principles namely that they have not  established  that:

a) Substantial loss may result to them  unless stay order is made.

b) The application has been made without unreasonable delay; and

c) Such security  as the court orders  for the due  performance  of the decree  or order as may ultimately be binding on the applicant has been given by  the applicant.

On substantial loss, the respondent submits that  it is  them who have suffered loss  as a result of the appellant’s action of  disposing  of the motor vehicle  subject  matter  of the suit  in flagrant disobedience of court  orders.  he relied  on the case of Joseph Mburu Gitau  vs  Mungai Kimanange (2014) e KLR where  the court held, inter alia :

“…………there is of course  the possibility  that these  findings of fact and law could  be overturned by this court, but  in the particular circumstances  of this case and as set out  in the lower court  record, he appellant  has not  demonstrated that he stands  to suffer  substantial loss.  What will be taken away  from him in execution of the decree  is simply what he  should not  have taken  away  from the respondent  in the first place.

According to the respondent, the value of  the motor vehicle  was only  one of the factors  taken into  consideration in ordering  for deposit  of 600,000/- into court.   Further that  the applicant  has not shown what substantial  loss will be suffered by them in complying with the court order  which required  a deposit of shs 600,000 in court  and that if the  submission by the appellants is accepted, the  applicants  would be allowed to get away  with disobedience  of court orders  which the  court should not condone.

On the issue of requisite  security, the  respondent submitted , citing Trust Bank Ltd  vs  Ajay Shah & 3 Others  (2012) e KLR.  That failure  to offer any security  for the due  performance  of the orders issued   by the trial court  disentitles  the applicant from enjoying   the discretion of the court in granting  an order  of stay of execution pending appeal.  In Stephen M’Ikunyua M’Imathike  & 7 Others vs Rev. Elijah Mwingi (2006) e KLR  where  Lenaola J held:

“ for the direction to be exercised in favour of the appellant, the court is enjoined  to do so upon  a security being  given by  the appellant or the court  would otherwise  create other terms as it deems fit  for  granting  the stay of execution.  In the  instant  application  it is from the bar that  Mr Kariuki  for the appellant has offered  security  which is  unclear  .  Why was that mater not  deponed to in an  affidavit  by  the appellant….. “.   I  agree  that an application  under Order 42 Rule 6 (2)  of the Civil procedure  Rule  must offer to give security  at the time  of making the application  as a sign of bona fides.  In this  case  none has   been given”.

The  respondent submitted that the  applicant’s failure to  offer security  that would be ultimately be binding on him takes away the discretion of the court in considering  whether  to grant the orders  sought .

Finally, the respondent submits that the  applicant must comply with orders  issued  by the subordinate  court so as to pave  way for the substantive  hearing and urged this court to dismiss the application  with costs to the respondents.

I have carefully considered the appellant/applicant’s application for stay of execution  pending appeal  and stay or proceedings in the lower court pending  hearing and  determination of this appeal.

To determine  this application , it is  necessary  to outline the basis facts that are apparent  on record , culminating in this appeal and hence, the application .  Although the pleadings  in the lower court  are not annexed hereto  for perusal, but it clearly emerges that the origin of the dispute  between the parties hereto  was Nairobi  High Court (Commercial & Admiralty) suit No. 888/2010  wherein  the respondents  herein Mary Mumbua Mutuku and  Peter Mutuku Kukanda   were the plaintiffs  suing the appellant  herein Business Capital Access Ltd and Jeremiah Kiarie Muchendu T/A Icon Auctioneers .

In the said suit, the respondents herein  field a Chamber Summons dated                 17th December  2010 seeking for an  injunction to restrain  the appellants  from selling, alienating  or dealing in any manner  with motor vehicle registration No. KBC 461N Toyota Vitz.  They also prayed for a mandatory injunction compelling he appellants to release  the said motor vehicle to the respondents.

The suit  was as a result of the 2nd respondent taking a loan from the 1st appellant  in the sum of shs 100,000/- upon security  of the said motor vehicle, repayable  at  sh 9,000/- per month and he defaulted  after paying  shs 98,000/- upon which  the 1st appellant  allegedly transferred the motor vehicle  to itself  as per the loan  agreement and claimed  a further  default  interest  rate of shs 10% per month which  the respondents  denied knowledge  of as they  were not given a copy of a loan agreement.  The court  upon hearing the parties on  the application found merit in it and granted a prohibitory injunction against the appellant from selling, alienating, transferring or dealing  with the respondent’s motor vehicle  registration No. KBC 461 N Toyota Vitz until the suit was heard and determined.  Honourable Kimondo J also issued   a mandatory  injunction to release   the respondents forthwith at their cost, the motor vehicle  in question  to the respondents  by the appellants.  He also ordered that costs of storage  and other charges  be borne by the 1st  appellant  herein.  He also awarded cost to the respondents .  The orders were made  on 16th March 2012 .  The above orders  of Honourable Kimondo J were never  appealed  against  by  the appellants  herein and instead, they  sought or review  of the same vide a notice  of motion dated  10th May 2012 brought under Order 45, 40 and Section 80  of the Civil Procedure Act seeking to set aside  orders of Kimondo J made on     16th March 2012.  It also sought that the court should find  that the  injunctive  orders in favour of  the respondents lapsed  as the date  of the ruling on 15th March 2012.

The appellants further alleged that the court erred in finding that the 1st appellant  was a deposit  taking  microfinance  that was operating  without license  yet the truth  was that the 1st appellant  did not  require  a license.

Further, that the interim order of injunction  granted on 17th December 2010 lapsed on 16th March 2011and was not renewed  hence there  was no bar to repossession of  the suit vehicle on 7th July 2011 and that motor vehicle  had always  been in the name  of the 1st  appellant  which fact  was not controverted by the respondents  herein.  That  the orders of injunction had lapsed  by operation of law after  1 year and that it  was lawful  business  with over  1000 clients  and  it stood  to suffer  prejudice  by the grant of injunctive orders of 16th March 2012.  In dismissing the appellant’s application  for review  on 11th June 2013  the court  was categorical  ht  it lacked  merit and that allowing it  would amount to sitting  on his own  appeal.

Further, that it could possibly not be  true that the 1st appellant herein loaned the respondents  money on a car  owned by the 1st appellant.  Further, that  at the time of its attachment, the 2nd  appellant conceded  that he had no court  order or decree or authority to attach the  vehicle but only relied on a loan agreement  between  the      1st appellant and the  2nd respondent.  There was  no  chattels mortgage  or hire purchase agreement  and that  the application was not brought  timeously.

The appellants   did not comply  with the  orders of Kimondo J of 16th March 2012 even after  a review  thereof was declined  on 11th June 2013.  Neither  did they appeal  against  the said orders refusing  a review.  The suit  was then transferred  to the subordinate  (Commercial courts) at the Chief Magistrate’s Court  in Milimani  for hearing and disposal.

On 8th October 2013, by an application  dated 7th October 2013 the respondents  herein  filed a Notice of Motion seeking to  have the  appellants cited  for  contempt  of court  orders  issued by  Kimondo J  on  16th march 2012  and in the alternative the court do order for attachment  of the property if the appellants.

The  trial magistrate found that there was no appeal against  Honourable Justice  Kimondo’s  rulings of 16th March 2012  and 11th June 2013  and that indeed  the appellants had not complied  with the orders of 16th March 2012  and further, that the judge having found that  the appellants  had colluded with a third parties  to defeat the court orders he found them in contempt  and ordered as follows:-

“ having cited the three respondents for contempt  of court, I impose  penalty  as follows:-

1) The defendants  jointly and severally  to deposit  a sum of shs  600,000/- being the value of the suit  motor vehicle  and the  costs herein with the  court within thirty (30) days of todays date.

2) Failure  to comply  with Order 1 above =, on 31st  of  today’s date, the defendants  to be arrested and be committed to civil jail  for a thirty(30) days preferably at the Industrial  Area prison.

3) The said sum of shs 600,000/- be  retained by the court  until this suit is heard and determined.

4) In case of continued breach  and  disobedience  of the orders issued on     16th March 2012  by the defendants  for  a period  of more than 90 days  of today’s date, the sum of shs 600,000 deposited with the court herein be released  to the plaintiff’s  automatically  and unconditionally.

Dated, delivered and signed this 4th day of April 2014

I. Gichohi  (MS)

RM”.

The appellants again , did not appeal against the orders of 4th April 2014  and instead  sought  for  review of the said orders of I. Gichohi (MS) which application was declined on 30th June  2014, prompting this appeal filed on 28th July 2014  dated       24th July 2014.

In the  ruling of 30th June 2014 the  trial magistrate declined  to hear the appellants  on the grounds that  they  had not complied  with orders of 4th April 2014  which had  timelines .  Further, that the appellants had no  audience  before the court  and issued  a warrant of arrest against  them.   She also granted  them leave to appeal.

Those  are the trite  facts  giving rise  to this appeal and  application for  stay of execution of the orders of  30th June 2014  as well as  stay of  the said proceedings with the above clear position, I find  it quite  unusual that the appellants  in their supplementary  affidavit  sworn on 7th November 2014  would swear  to the paragraphs 11,12,13,14,16,17,18 which are  in essence challenging the orders  of Kimondo J in his  two rulings referred to above  and the ruling  of Gichohi (RM) of     4thApril 2014 which orders were never appealed  against, as opposed to challenging  the orders of 30th June 2014 by Gichobi Honourable.

As correctly submitted by the respondents, an application for stay of execution pending appeal is governed by  Order 42 Rule 6 (2) of the Civil Procedure Rule .  The appellants never mentioned those provisions  in their submissions  or even in the affidavits  or grounds in support of the application, other than citing them beneath the Notice of Motion dated  31st July 2014.  The appellants  have engaged  this court in  a purely academic exercise complaining  bitterly  against  the ruling of the trial magistrate  of 4th April 2014 and alleging  that the  orders of  Kimondo J were incapable of being  implemented , despite a subsequent  ruling by the Honourable Kimondo J asserting  the original position, when he correctly dismissed the application for review  of his earlier  orders, which dismissal  order was never appealed  against .  To be bold  with the appellants, they  are in essence , by their application  dated 31st July 2014 seeking to appeal against the  orders of Kimondo J issued on  16th March 2012  and 11th June 2013 respectively  through  the backdoor, having failed to exercise  their right of appeal in both instances.

Furthermore, the appellant’s  are guilty  of non disclosure  of material facts  when they filed the application dated 31st July 2014, they completely  left out  any reference  to the orders  of Honourable Kimondo J  of 16th March 2012 and 11th June 2013  which they  had in my view, brazenly disobeyed, giving rise  to the orders of  Honorable Gichohi (MS) of 26th May 2014  and  30th June  2014  respectively  wherein   the honourable magistrate found the appellants  in contempt of court orders of 16th March 2012 by Honourable Kimondo J and having so found,  declined , in the subsequent  application , to hear the appellants  out  until they purge their contempt.

It was not until the respondents  had filed  their replying affidavit on 14th October 2014 disclosing  all the facts  and circumstances of this case  which I have reproduced  in this ruling  and annexing  copies of those two rulings/orders  by Honorable Kimondo J  that the  appellants  herein  owned up  vide their  complementary affidavit sworn by Njage Makanga  on 7th November 2014, even then, the said affidavit  was  very defensive  against  the orders of Kimondo J (see paragraph 11,12,13 of  the supplementary affidavit) .  The appellant further contended  that:

“ as at the time of filing of this  suit” the  motor vehicle  in question, KBC  461 N was sold to a third party in the month  of July 2011  as shown by annexture  ‘NM2” copy of sale  agreement  annexture ‘NM2” is a copy  of order issued  on 4th April 2014  by Honourable Gichobi.”

The question however  is , where  was this sale  agreement  at the time Honourable Kimondo J was hearing  and determining  the  two applications referred  to in this  ruling  why  was the agreement not  disclosed  on 2011 and where  has it come  from in the year  2014 before  the subordinate court?

In addition, this court notes that  annexture ‘MN2’ of the affidavit by  Njage Makanga  paragraph 8 purportedly annexes copy  of logbook  for the suit motor vehicle  allegedly registered  in the  name  of the 2nd respondent  yet, again, no such copy of log book was annexed  to the said affidavit.   It is a blanket deposition without a physical logbook.

The appellants are in my view, hoodwinking  this  court with  baseless  confusing  depositions which cannot  be substantiated. Particularly when they had alleged  in their application  for review  that the motor vehicle had  changed hands  way back  on 7th July 2011.  In paragraph  8 of  the ruling  of Kimondo J made  on 11th June 2013  he stated this:

“ At the time  of the ruling on  16th March 2012, the defendants  did not  disclose  that the  motor vehicle  had been  sold way back on 7th July 2011.  It is  thus neither  here nor there for me to  inquire  into whether  the order of injunction  first granted  on 17th December 2010  had expired.  The truth  would seem to  be that the defendants  concealed  that sale  to the court.  It was not  mentioned  on their replying affidavit .  There was only reference  in the defendant’s submissions  filed on  5th October 2011 that the “application is  overtaken by events”  as the defendants  had sold  the vehicle  and were  no longer in possession.  That is  not evidence of sale.  That is why the  court later upon examination  of  the 2nd defendant and the 1st  defendant’s director ordered  that the  alleged  buyer  be enjoined  in the  suit.  Despite  the orders of  court and service, the said  alleged buyer  has not entered  an appearance .  and if there  is  such a  buyer, why does the 1st  defendant now contend that at  all material times it owned the vehicle”.

“ I have this formed the impression that  the present motion is clearly continued  to defeat  the orders of  court of  injunction dated 16th March 2012”

The Honourable learned Judge  at paragraph  10 also wondered  how the 1st  defendant  was at all material  times the  owner of  the suit motor  vehicle yet it had  loaned the  plaintiffs  money on a car owned by  the 1st defendant.”

With the above  strong sentiments made by the learned Judge,  this  court  is indeed  shocked  to learn  that the  appellant  herein did not  appeal against  that order/ruling  if at all it made sense in fact and or law.  Further, this court is perturbed  that indeed  this is the first  time  the appellant  is now physically  disclosing  to the  court the existence of  a sale  agreement  for the suit  motor vehicle  to a third  party, which evidence   would have been  availed to the court during  the hearing of the application s subject  matter of the  rulings  of 16th March 2012 and 9th June 2013  and which “suspect sale” the learned judge  elaborately alluded   to and dismissed .  I am equally convinced that the  appellants are abusing the processes  of this court by escalating a dispute which in my view, was long determined by the ruling of Honourable Kimondo J referred  to above  and are  only oscillating  around different courts  with a view  to defeat  not only  the orders of injunction of 16th March 2012 but also defeat  or obstruct  justice for the respondents  herein.

This court  insulates itself from being  a  conduct of  super white lies  to  extricate  the appellants from escaping  facing  the justice of the case and resists  any  attempt  by any party from  abusing its processes.  To allow this  kind of application in the glare  of  such facts as disclosed  on record  would amount to rendering  the court  processes  absurd  and create confusion in court  processes.  It would also have the effect of condoning  impunity of the highest order  as the appellant  will simply  walk  away smiling  that he has had his day  by using  incessant tricks .

The appellant must be told in the strongest terms that he cannot hang around court corridors in perpetuity seeking to defeat the course of justice.

This court  resists  and it is so entitled  to reject  sitting  on appeal of the orders  of my learned  brother judge Honourable Kimondo J issued on  16th March 2012  and 11th June 2013 .  The appellants had an open opportunity to challenge those orders after they were made but failed to do so and are now attacking the said orders in this application.  Back to the issue of whether  the application  for stay  pending  appeal is merited, I  reiterate  that without  the appellants/ applicants  making any reference  to the provisions  of Order 42 Rule 6(2) of the Civil Procedure  Rules  and its application or reliance  to this application, this court cannot be of any assistance.  They have totally failed to demonstrate that they are likely to suffer substantial loss if the stay is declined and the appeal is successful, or that if the appeal succeeds, it shall be rendered nugatory. Secondly, the applicants have not demonstrated any willingness to deposit any security as may be binding on them for the due performance of decree/order. They however brought this application without unreasonable delay.  They have also not shown any sufficient cause or that they have an arguable appeal.  I say so because the  appellants main complaint in the supplementary  affidavit  and submissions  oscillates  around  the orders  of Kimondo J which culminated   in their  being cited  for contempt  of court and which orders  were never  appealed  against.

Further, in the application herein consisting of Honourable Gichobi (MS)  made on 26th May 2014. In other words, the appellants have failed to demonstrate how the orders of 30th June 2014  will occasion them substantial  loss or if not  stayed, should the appeal  herein  be successful, they appeal shall  be rendered  nugatory.

They have  also failed to demonstrate that they are entitled  to the prayer  for stay of proceedings in the lower  court pending  hearing and determination of this appeal.

As was stated in Halsbury’s Laws of England, 4th Edition VOL 37 page  330 and 332:

“  The stay of proceedings is a serious, grave  and fundamental  interruption in the right  that a party  has to conduct his litigation towards the trial on the basis of the substantive  merits  of his case, and  therefore the court’s  general practice is that  a stay  of proceedings should not be  imposed unless  the proceedings , beyond  all reasonable  doubt ought not to be allowed  to continue.”

This is a power which, it has been emphasized, ought to be exercised sparingly and only in exceptional cases.

“  it will be exercised where the  proceedings  are shown  to be frivolous, vexatious or harassing or to be manifestly  groundless or in which there is  clearly no cause of action in law  or in  equity .  The applicant of a stay of this ground  must show not merely that the  plaintiff might not, or probably would not, succeed  but that  he could not  possibly succeed on the basis of the pleading and  the facts of the case”.

In Standard  Ltd  & Others vs Wilson Kalya  & Another  T/A  Kalya  & Co. Advocates CApp 369/01 Nairobi the Court of Appeal held, inter alia:

“…………(a)  the appellant  must show that his appeal is an  arguable  one.   In other  words, he must show that the appeal is  not a frivolous one

(b )   The appellant must also show, in addition , that if the order for stay of proceedings  is not granted, his appeal , if it  were to succeed , would be rendered  nugatory.”

In the instant case, it is clear from  my analysis  of the application that  the applicants  have not established  even  by way of submissions  sufficient cause  to satisfy this court that  their application for stay of  execution  and or  stay of proceedings  is warranted.  By vigorously challenging  the orders  of Kimondo J and Honourable Gichobi  orders of  26th May 2014  given on 4th April 2014, they have missed  the mark.  They  squandered their right of appeal against those orders   against  those  orders and now they ought  to be focusing on the orders made on  30th June  2014  and its effect  which they  have  not attempted to address  in principle.  The applicants are seeking to have a second bite at the cherry. Having chosen  the path of  review  of the orders of  Kimondo J and Honourable Gichobi  and not  appeal, they  cannot at this stage  purport  to be appealing against the said  orders  which as  I have already pointed out  in this  ruling, is an exercise in futility.

Therefore, having considered  this application as a whole  and the opposition thereto and the  applicable  law and  principles  espoused  in judicial  precedents, I am not satisfied  on a balance of probabilities  that the applicants  have demonstrated   to the satisfaction of the court  that they  deserve the prayers sought, or that the appeal herein as filed would be rendered  nugatory if their applications were not  allowed.  it is not sufficient  to allege .  He who alleges must discharge the burden of  proof on a balance of probabilities.

In my most considered opinion, each case depends on its own facts and in  this case, I find it  difficult to be  persuaded that the applicants have made  out a case  on the facts  presented  that  their appeal shall in any way be rendered  nugatory  if stay is not granted  or that they  stand to suffer  substantial  loss.

The appeal may be heard and if successful the proceedings in the lower court would be determined in accordance therein.   In addition, if the main challenge  is the order of payment of shs 600,000/- then I have no doubt that  if the appeal  is successful, appropriate  orders  of refund  can be obtained  together with costs  to compensate  the aggrieved  party.  The appeal  will not have been  worthless.(see the Court  of Appeal decision in KCB Ltd –vs Benjoh Amalgamated  Ltd & Another C.A. Misc Appl No. 50/2001  at page 3   of that ruling.

It is s for the above reasons that I find the application by the applicants  dated 31st July 2014  devoid  of merit  and substance and proceed to  dismiss the same with costs to  the respondents.

Dated, signed  and delivered at  Nairobi this  29th day of April 2015

R.E. ABURILI

JUDGE

29. 4.2015

Coram Aburili J

C.C. Kavata

Mr Rono holding brief for  Mr Langat for 1st appellant

Miss Chepkrui  for respondents

COURT – Ruling  read and delivered  in open court this  29th day of April 2015  at 3. 00pm.

R.E. ABURILI

JUDGE

29. 4.2015

Mr Rona-   I have instructions to seek  a stay of 30 days  to study the ruling  and  consult  client  on the way forward.

Miss Chepkrui-   I object  to the application  for stay.  They can  apply formally.  There is delay and prejudice in the pendence of  the lower court matter.

Mr Rono-  I leave it to court.

COURT-   This application subject of the ruling I have just  delivered  was for stay of execution  of a ruling  in the lower court pending this appeal.  This court has not  made any  orders which are capable  of  being  stayed as  the application  for stay does not state stay  of what pending the study  of the ruling and instructions  from the appellants. Consequently, I decline  to grant  a stay in vain.

R.E. ABURILI

JUDGE

29/4/2015