Dysara Investment Limited & Luvio Luigi Beretta v Woburn Estate Limited & Woburn Management Limited [2022] KEELC 376 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MALINDI

PETITION NO. 6 OF 2020

IN THE MATTER OF: A PETITION BY DYSARA INVESTMENTS

LIMITED AND LIVIO LUIGI BERETTA

AND

IN THE MATTER OF: THE BILL OF RIGHTS AS ENSHRINED

IN ARTICLES 19, 20 AND 21 OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF: ARTICLES 162 (2) (B) AND 3 AND

ARTICLE 165 (3) AND (6) OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF: THE ALLEGED INFRINGEMENT

OF ARTICLE 50 (1) OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF: THE ALLEGED INFRINGEMENT OF RIGHTS UNDER

THE ARTICLE 46 OF THE CONSTITUTION OF

KENYA CONSUMER PROTECTION ACT

AND

IN THE MATTER OF: ENFORCEMENT OF FUNDAMENTAL RIGHTS AND

FREEDOMS UNDER ARTICLES 22 (1) AND 23 (1) OF THE

CONSTITUTION OF KENYA

BETWEEN

DYSARA INVESTMENT LIMITED........................................1ST PETITIONER

LUVIO LUIGI BERETTA.........................................................2ND PETITIONER

VERSUS

WOBURN ESTATE LIMITED...............................................1ST RESPONDENT

WOBURN MANAGEMENT LIMITED...............................2ND RESPONDENT

RULING

This ruling is in respect of a Notice of Motion dated 29th July 2021 by the Petitioners seeking for the following orders;

1. Spent

2. Spent

3. That there be a stay of the judgment/order herein delivered on 16th July 2021 pending the hearing and determination of the Petitioners’ appeal against the said judgment/order to the Court of Appeal.

4. That costs of the application be provided for.

Counsel agreed to canvas the application by way of written submissions which were duly filed.

APPLICANT’S SUBMISSIONS

The Applicant relied on the Supporting Affidavit of Cecil Guyana Miller, the Director of the 1st Petitioner with the authority of the 2nd Petitioner and stated that on 16th July 2021, this Honourable court delivered its ruling on the Respondent’s Notice of Preliminary Objection dated 14th September 2020 and the Petitioners Notice of Motion dated 27th July 2020 in which the court upheld the Preliminary Objection and dismissed the entire Petition.

The Applicant deponed that being dissatisfied with the ruling, the Petitioners instructed their advocates on record to institute an appeal against the same to the Court of Appeal. That a Notice of Appeal was filed on 23rd July 2021 which is within the time prescribed for filing an Appeal and was served upon the Respondents on 26th July 2021.

It was the Applicant’s case that unless stay of execution pending Appeal is granted the Respondents will disconnect electricity, water and other services to the Petitioners which would cause the Petitioners suffer substantial loss which cannot be recovered in the event the Appeal succeeds. That further, the Petitioners have been paying and will continue to pay monthly service charge pending the hearing and determination of the appeal.

Counsel submitted that the court has discretion to grant the orders sought and urged the court to allow the application as prayed.

RESPONDENTS SUBMISSIONS

Counsel submitted that the Petition having been dismissed on 27th July 2020 for being Res Judicata, the court became functusofficio therefore cannot exercise appellate jurisdiction over its own decision. That  the court gave a negative order which is incapable of being stayed and cited the cases of  Abdulrahman C. Kirao & 3 Others V Said Seif & 3 Others [2009]eKLR, Shade Manufacturers and Hotel Limited v Serah Mweru Mutuu & 3 Others and Peter Anyang’ Nyong’o & 2 Others v Minister for Finance & Another [2007]eKLRwhere the court held that an dismissing an application is in the nature of a negative order and is incapable of execution save, perhaps, for costs and such order is incapable of stay.

Counsel therefore urged the court to dismiss the Application with costs to the Respondents.

ANALYSIS AND DETERMINATION

Applications for stay of execution pending appeal are governed by Order 42 Rule 6(2) of the Civil Procedure Rules which  provides that: -

(2) No order for stay of execution shall be made under Sub rule (1) unless 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.

Before I delve into whether the Applicant has met the ingredients of an application for stay of execution pending Appeal, it is important to ascertain what the Applicant wants the court to stay. Did the court issue any positive order that is capable of being stayed? If the answer is in the negative, then I will not go any further to look into whether the Applicant has met the threshold for grant of stay of execution.

In this case, the Petitioners filed this Petition contemporaneously with an application dated 27th July 2020 seeking for conservatory orders against the Respondents. The Respondents filed a Notice of Preliminary Objection dated 14th September 2020 which was heard together with the application whereby the court upheld the Preliminary Objection, struck out the Notice of Motion and dismissed the entire Petition with costs. The question is whether there is anything that the court can stay from such orders.

In the case ofCooperative Bank Limited –vs- Banking Insurance & Finance Union Kenya - Nairobi Application no. 133 of 2017the court held that: -

“ an order for stay of execution 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…the Court has identified negative orders as orders that are incapable of execution. Consequently, an order for stay of execution cannot be issued in respect of such an order.”

Similarly in the case ofExecutive Estates Ltd V Kenya Posts and Another [2005] 1 EA 53the court held that:

“The Court has identified negative orders as orders that are incapable of execution. Consequently, an order for stay of execution cannot be issued in respect of such an order.”

In the case ofAbdulrahman C. Kirao & 3 others v Said Seif & 3 others [2019] eKLRthe court observed;

Further, in the Judgment delivered on 14th January 2019, the court dismissed the Applicants' Petition. There are no positive orders to stay as the order dismissing the Petition was a negative order and is incapable of execution, save perhaps, for costs.

Similarly, in the case ofCharles Munvendo Olinqo v Salim Chetechi Makokha & another [2019] eKLRthe court held that; -

"We have carefully perused the record and submissions by counsel and the issue for our determination is whether the Applicant has satisfied the laid down principles for grant of stay of execution pending appeal. However, before we venture into those principles, we must first address the issue as to whether a negative court order is capable of being stayed. The Applicant moved the ELC court seeking a declaration that he was the proprietor of the suit land. His claim was dismissed. The court did not order either party to do anything. It simply dismissed the appellant's case with costs.”

The Applicant seeks to stay a negative order of the court which essentially dismissed the Petition with costs and did not order for anything to be done. A negative order is not capable of being stayed. Consequently, I find that the application lacks merit and is dismissed with costs to the respondents.

DATED, SIGNED AND DELIVERED AT MALINDI THIS 24TH DAY OF MARCH, 2022.

M.A. ODENY

JUDGE

NB: In view of the Public Order No. 2 of 2021 and subsequent circular dated 28th March, 2021 from the Office of the Chief Justice on the declarations of measures restricting court operations due to the third wave of Covid-19 pandemic this Ruling has been delivered online to the last known email address thereby waiving Order 21 [1] of the Civil Procedure Rules.