Kenya Reinsurance Corporation Ltd & another v Crownbit Limited [2023] KEHC 25210 (KLR)

Kenya Reinsurance Corporation Ltd & another v Crownbit Limited (Civil Appeal 313 of 2019) [2023] KEHC 25210 (KLR) (Civ) (10 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25210 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 313 of 2019

AN Ongeri, J

November 10, 2023

Between

Kenya Reinsurance Corporation Ltd

1st Appellant

Stanley Mugacha t/a Galaxy Autcioneers

2nd Appellant

and

Crownbit Limited

Respondent

Ruling

1. The application coming for consideration in this ruling is the one dated 10/6/2019 seeking the stay of execution of the order of Hon. Orenge dated 4/6/2019 which found the appellants guilty of contempt of court.

2. The application is based on the grounds on the face of it and supported by the affidavit of Jadiah Mwarania sworn on 10/6/2019.

3. The Respondent opposed the Application dated 10/6/2019 through the Replying affidavit sworn on 26/7/2019.

4. The respondent filed another application dated 1/7/2019 seeking review of the orders issued by the trial court on 31/12/2018.

5. The Appellants filed submissions in the application dated 10/6/2019 as follows; That the trial court delivered a ruling on 4/6/2019 and found the appellants guilty and of contempt of court orders made on 31/12/2018.

6. That the court ordered the authorized officers of the 1st appellant to pay 150,000 for contempt and in default to be committed to civil jail for 30 days.

7. The officers paid the ksh.150,000 each on 1/7/2019.

8. That the 1st appellant have no tenancy agreement capable of being enforced and further that the 1st appellant now has a new tenant and has since entered into a new tenancy agreement with the new tenant and therefore the orders sought in the respondent’s application dated 19/2/2019 cannot issue.

9. The respondents were seeking injunctive orders in the application dated 19/2/2019 which was meant to maintain the status quo.

10. The Respondent did not file any submissions in the Application dated 10/6/2019 as directed by the court.

11. The issues for determination in the application dated 10/6/2019 are as follows;i.Whether the Appellants should be granted stay of execution in the application dated 10/6/2019. ii.Who pays the costs of the Application?

12. The court gave directions on 19/5/2023 when this appeal was listed for dismissal that the Application dated 10/6/2023 be heard first.

13. The Application coming for consideration in this ruling is therefore the one dated 10/6/2019.

14. I find that the officers of the 1st appellant have paid the ksh.150,000 each ordered in lieu of being sent to civil jail.

15. The appellants have submitted that they have another tenant in the premises. The respondents did not file any submissions.

16. In the mater of Nicholas Stephen Okaka -v- Alfred Waga Wesonga (2022) eKLR where the Court held that:“An applicant for stay of execution of a decree or order pending appeal is obliged to satisfy the conditions set out in Order 42 Rule 6(2) aforementioned: namelya.that substantial loss may result to the applicant unless the order is made;b.the application has been made without unreasonable delay; andc.such security as the Court orders for the due performance of such decree or order as may ultimately be binding on the applicant has been given.

17. I find that the Appellants have already depositedthe ksh.150,000 each on 1/7/2019 and the same can be regarded as security for the due performance of the decree.

18. I allow the application dated 10/6/2019 and I grant the appellants stay of execution pending appeal on condition that the appeal herein is prosecuted within 90 days of this date.

19. Failure to comply this appeal to stand dismissed at the expiry of 90 days from this date.

20. The costs of the application to abide the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 10TH DAY OF NOVEMBER, 2023. ................A. N. ONGERIJUDGEIn the presence of:……………………………. for the 1st Appellant……………………………. for the 2nd Appellant……………………………. for the Respondent