John Njoroge Gitangu v Fantasy Auctioneers & Lulu Court Management Trustees [2019] KEHC 6811 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 111 OF 2019

JOHN NJOROGE GITANGU............................APPELLANT/APPLICANT

VERSUS

FANTASY AUCTIONEERS……..………………………1ST RESPONDENT

LULU COURT MANAGEMENT TRUSTEES….....….2ND RESPONDENT

RULING

1. The Notice of Motion dated 28th February, 2019 has been brought by the appellant/applicant. The same stands supported by the grounds set out on its face and the facts deponed to in the affidavit sworn by the applicant. The main prayer sought is an order for  stay of execution pending an intended appeal against the ruling delivered by Honourable Gesora, learned Chief Magistrate delivered on 12th February, 2019 vide CMCC NO. 5598 OF 2018.

2. The applicant in his supporting affidavit deponed inter alia that he had previously lodged an application seeking for a stay of execution and a setting aside of the judgment entered in CMCC NO. 5598 OF 2018 but that the same was dismissed.

3. The applicant also deponed that he soon thereafter filed an application seeking a permanent injunctive order against the respondents and which application was similarly dismissed vide the ruling of 12th February, 2019.

4. The 1st respondent did not file any documents in opposition to the application. Nonetheless, Mohamed Jeneby, the Head of Operations of the 2nd respondent, swore a replying affidavit on behalf of the 2nd respondent.

5. In their respective oral arguments, K’owade counsel for the applicant and Itemere counsel for the 2nd respondent opted to rely on their respective averments and documents filed.

6. I have considered the grounds set out on the face of  the Motion and the facts deponed in the  supporting and opposing affidavits.

7. In determining whether or not to grant a stay of execution, I am guided by the principles stated under Order 42, Rule 6 (2) of the Civil Procedure Rules as hereunder:

a) The application must be brought without unreasonabledelay;

b) The applicant must demonstrate that substantial lossmay result; and

c) Provision should be made for security.

8. As concerns the first principle, I have noted that the application for stay was barely one (1) day after the delivery of the ruling. It is therefore apparent that the application has been timeously filed.

9. On the second principle the applicant communicated his apprehension arguing that unless a stay is granted, the respondents will proceed to attach and dispose of his goods, thus rendering the appeal nugatory.

10. The applicant also stated that the execution has already begun and will continue if the order sought is not granted.

11. It is the 2nd respondent’s argument that by virtue of the impugned ruling, the 1st respondent was permitted to recover the monies owing from the applicant.

12. In  Kenya Shell Limited v Benjamin Karuga Kibiru &another [1986] eKLRthe Court of Appeal stated in part as follows:

“Substantial loss in its various forms, is the corner stone of both jurisdictions for granting a stay. That is what has to be prevented. Therefore without this evidence it is difficult to see why the respondents should be kept out of their money.”

13. In the present instance, no sufficient reasons have been presented by the applicant in persuading this court to grant the order for stay. In the premises, I have no basis on which to find that the applicant will suffer substantial loss if any.

14. Having failed to establish the substantial loss he would suffer if he is denied the order, then the order cannot be granted.

15. The third principle is dependent on the outcome of the decision on the second principle.  The applicant having failed to show the substantial loss he would suffer, I feel not obliged to consider the third principle.

16. In the end,  the Motion is found to be lacking in merit, it is hereby dismissed with costs to the respondents.

Dated, Signed and Delivered at Nairobi this 2nd day of May, 2019.

...........................

J.K.  SERGON

JUDGE

In the presence of:

……………………………. for the Appellant/Applicant

……………………………. for the 1st Respondent

……………………………. for the 2nd Respondent