Joseph Mwangi Kimani & James Njenga v Bernard Mbalu Nzyuko [2022] KEHC 2414 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL APPEAL NO. E374 OF 2021

JOSEPH MWANGI KIMANI.....................................1ST APPELLANT/APPLICANT

JAMES NJENGA.........................................................2ND APPELLANT/APPLICANT

-VERSUS-

BERNARD MBALU NZYUKO................................................................RESPONDENT

RULING

1. This ruling is premised on the Notice of Motion brought by the appellant/applicant herein dated 21st October, 2021 and supported by the grounds stated on its face and the facts stated in the affidavit of the 1st applicant. The following are the orders being sought therein:

i. Spent.

ii. THAT this Honourable Court be pleased to substitute the security of the attached motor vehicle registration number KCH 797T with an order for the deposit of the decretal sum in court or a joint interest earning account of both parties.

iii. THAT this Honourable Court do make any such further orders and issue any other relief it may deem just to grant in the interest of justice.

iv.THAT costs of the application be in the cause.

2. The Motion is opposed by the respondent who filed of the replying affidavit sworn by the respondent dated 4th November,2021.

3. At the hearing of the instant Motion, the applicants’ advocate chose to rely on the averments made in the Motion and the supporting affidavit, while the advocate for the respondent put in written submissions and made brief oral arguments reiterating the same.

4. I have considered the grounds presented on the face of the Motion as well as the affidavit in support thereof. I have likewise considered the replying affidavit sworn by the respondent and his written submissions.

5. Before I consider the merits of the instant Motion, I note that the respondent raised two (2) preliminary issues which I will first address.

6. The first preliminary issue concerns the existence of the appeal.

In essence, the respondent states and submits that the instant Motion is based on a non-existent appeal and is therefore fatally defective.

7. From my perusal of the record, I note that the above issue was previously raised by the respondent and addressed by this court in the ruling delivered on 1st October, 2021, with this court noting that the applicants filed their memorandum of appeal dated 29th June, 2021. Consequently, this preliminary issue is unfounded.

8. The second preliminary issue touches on whether the instant Motion is res judicata. The respondent states and submits that the prayer sought therein was also previously sought by the applicants in their application dated 29th June, 2021 and was determined by this court in the ruling delivered on 1st October, 2021.

9. Upon my perusal of the record, I note that the prayer being  sought at present is for substitution of the security for the due performance of the decree, which is distinct from the prayer for release of the motor vehicle registration number KCH 797T (“the subject motor vehicle”) sought in the application dated 29th June, 2021.

10. Moreover, upon my perusal of the record, the court note that I did not make any determination in respect to the subject motor vehicle but directed that the same be addressed in the appeal.

11. The above therefore dispels the assertion by the respondent that the instant Motion is res judicata. The second preliminary issue  also fails.

12. On the merits, it is apparent that the Motion is essentially  seeking for the substitution of the provision of security for the due performance of the decree, set by this court as a condition for granting an order for stay of execution.

13. In his affidavit, the 1st applicant state that the subject motor vehicle which is currently being held by Taifa Auctioneers is charged to a loan facility which continues to accrue interest and penalties, while not generating any income.

14. The 1st applicant further states that the subject motor vehicle is his sole source of livelihood and that he is willing to deposit the decretal sum in court or in a joint interest earning account, with a third alternative of providing a bank guarantee for the decretal amount from Family Bank Kenya Limited.

15. It is the assertion of the 1st applicant that the respondent will not suffer any prejudice if the order sought in the instant Motion  is granted.

16. The respondent on his part has challenged the Motion on the basis that it was not brought under the proper provisions which are Order 45, Rule 1 of the Civil Procedure Rules (“the Rules”) and Section 80 of the Civil Procedure Act (“the Act”) on review.

17. The respondent further contends that the applicants have not established the grounds upon which a review can be made on the abovementioned ruling and that in any event, the appeal can be expedited.

18. Going by the record, the applicants brought the instant Motion under the provisions of Order 42, Rule 6 of the Rules (on stay of execution pending appeal); Sections 1A, 1B, 3A (on the overriding objective and inherent powers of the court) and 95 (on the enlargement of time) of the Act.

19. It is apparent that the Motion essentially concerns itself with a review of this court’s earlier order for a stay of execution and hence the provisions of Section 80 of the Act and Order 45, Rule 1 of the Rules would apply.

20. It is not in dispute that the above relevant provisions on review have not been cited in the heading of the Motion.  Suffice it to say that I am of the view that the Motion would not be fatally defective by the mere fact that the applicants did not come under the correct provisions. The rules of substantive justice enjoin the court to consider the substance of the Motion without undue regard to procedural technicalities, pursuant to the provisions of Article 159 (2) (d) of the Constitution, 2010.

21. The applicable principles in determining an application for a review are found under Order 45, Rule 1 of the Rulesand are reaffirmed by Section 80 of the Act, as follows:

a) the discovery of new and important matter or evidence, or

b) some mistake or error apparent on the face of the record, or

c) any other sufficient reason.

22. On the subject of whether there has been an unreasonable delay in bringing the Motion, upon establishing that the Motion was filed less than one (1) month from the delivery of the ruling in question, I find that the Motion has been brought without unreasonable delay.

23. From my study of the instant Motion, it is apparent that the applicants have approached this court under the principle of ‘any other sufficient reason’ and which reasons have been set out hereinabove.

24. Upon considering the foregoing circumstances and upon balancing the competing interests of the parties, I am satisfied that it would be in the interest of justice and fairness for this court to review the earlier order for a stay of execution and to grant the applicants an alternative on the provision of security, since they have indicated their readiness and willingness to provide security for the due performance of the decree.

25. Consequently, I will exercise my discretion in allowing the Motion dated 21st October, 2021 and hereby direct that the provision of security by way of the attached motor vehicle registration number KCH 797T is hereby substituted with an order directing that the applicants deposit the entire decretal amount in an interest earning account in the joint names of the parties’ advocates/firm of advocates within 45 days from today, following which the motor vehicle registration number KCH 797T shall be released to the applicants. Failure to comply with the stipulated condition and timelines will result in an automatic lapse of the stay order.

26. Upon considering the nature of the Motion, I find it fair and reasonable to order the applicants to bear the costs of the  Motion.

Dated, Signed and Delivered online via Microsoft Teams at Nairobi this 11th day of February, 2022.

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

J. K.  SERGON

JUDGE

In the presence of:

........................................ for the 1st and 2nd Appellants/Applicants

........................................................................... for the Respondent