Enock Ptinek Manyu v Jamii Bora Bank [2022] KEHC 1871 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CIVIL CASE NO. 152 OF 2018

ENOCK PTINEK MANYU..........................................................APPELLANT/ APPLICANT

VERSUS

JAMII BORA BANK............................................................................................RESPONDENT

RULING

1. The applicants Notice of Motiondated29th of November 2021 prays for the following reliefs;

a) That this Honorable Court be pleased to restrain the Defendants by way of an injunction from selling by auction or otherwise, transferring, alienating, charging or in any way interfering with the Plaintiff's quiet possession and use of Land Parcel number L.R NO 10/235 KABACHIA ESTATE (NAKURU COUNTY) pending hearing and determination of an appeal against the judgement of this honorable court.

b) THAT costs of this application be provided for.

2. The application is supported by the grounds on the face thereof and  the sworn affidavit of the applicant dated 29th November 2021. He  deposed that this honorable court delivered its judgement herein  on 18th November, 2021 and being aggrieved he has filed a notice  of appeal and has applied for a copy of certified proceedings.

3. That he had been advised by his advocates on record, which advise  he verily believed to be true, that he had an arguable appeal and  that this honorable court had discretion to issue orders that  preserve the suit property. He urged the court to exercise its  discretion in allowing the application as the same had been brought  without delay and he was willing to abide with orders that this  honorable court may make in terms of security for costs or  otherwise.

4. The respondent in response to the application filed grounds of  opposition dated 14th December 2021 in which it has termed the  application totally misconceived and a total waste of judicial time.   That the order cannot be made since the appeal was entirely  dismissed and no order can therefore be made in vacuum.

5. When the matter came up for hearing the court directed that the  same be determined by way of written submissions which the  parties have complied

Applicants Submissions

5. The applicant submitted that the orders appealed from were in the  negative being orders for dismissal of an application and therefore  the said orders could not be stayed as they are incapable of  execution. That however, there was need to preserve the suit  property because if the same was sold by way of an auction his  appeal will be rendered nugatory. He urged the court to be guided  by the provisions of Order 42 rule 6 of the Civil Procedure Rules  in its consideration of the application as there were no express  provisions that apply to the present circumstances.

6. The applicant submitted further that he had an arguable appeal and  placed reliance on the case of Scofinal Ltd (Ruere Estate) v  Abisagi Igoki [2018] eKLR where the court held that in order to  earn a stay of execution, one was not required to persuade the court  that the filed appeal had a high probability of success but the  arguability of the appeal. He urged the court to allow appeal and  award costs in his favour.

Respondents Submissions

7. The respondent identified only one issue for determination and that  is whether the applicant meets the threshold to be granted the  orders sought. It is the respondent’s submission that the applicant’s  application was a backdoor application for stay of execution having  relied on Order 42 rule 6(1) of the Civil Procedure Rules  disguised as an application for a temporary injunction. That this  court cannot determine an application for temporary injunction for  the second time having pronounced itself on the same. The  respondent submitted that this court’s orders of 18th September  2018 dismissing the appeal cannot be stayed as the same are  negative orders not capable of being enforced. The courts attention  was drawn to the case of Republic v Retirement Benefits Appeals  Tribunals Ex-parte Heritage Insurance Company [2017] eKLR.

8.  In conclusion, it was submitted for the respondent that the present  application was devoid of any merit and ought to be dismissed.

Analysis and Determination

9. I have considered the pleadings and submissions by parties and in  my view the issue arising for determination is whether the  application dated 29th November 2021 has merit. In addressing the  same this court takes note of the Judgment of 18th November 2018  entered in favour of the respondent.

10. In this application, the applicant admits that this court cannot issue  injunctive reliefs as they were incapable of execution. The applicant  in his submissions urged the court to be guided by the provisions of  Order 42 rule 6 (1) in its consideration of the application as there  were no express provisions that apply to the present circumstances.

11. In view of the above, i find that this court has no jurisdiction to stay  any action unless there is a positive order of court for something to  be done or enforced. This court has no power to stay a negative  order of dismissal as was found by the Court of Appeal in the case  of Oliver Collins Wanyama v Engineers Board of Kenya [2019]  eKLRwhere it observed that

“An order of stay is not available to the applicant if his  application for judicial review having been dismissed,  giving rise to a negative order that is incapable of being  stayed”

12. In the premises, it is clear that there is no order of this court in the  judgment dated 18th September 2021 that is capable of execution.  All that the applicant ought to do is perhaps seek further solace from  the Court of Appeal.

13. The application is otherwise dismissed with costs.

Dated signed and delivered via video link this 3rd day of March 2022.

H K CHEMITEI.

JUDGE