Kilimo & another v Talam [2022] KEHC 10967 (KLR)

Kilimo & another v Talam (Civil Appeal E009 of 2022) [2022] KEHC 10967 (KLR) (12 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10967 (KLR)

Republic of Kenya

In the High Court at Kapsabet

Civil Appeal E009 of 2022

EKO Ogola, J

July 12, 2022

Between

Juhudi Kilimo

1st Appellant

Legacy Auctioneers

2nd Appellant

and

Philemon Cheruiyot Talam

Respondent

Ruling

1. By way of Notice of Motion dated 24th March 2022 the applicant seeks the following orders;a.That this court be pleased to issue stay of execution of the orders issued on 23rd march 2022 in Kapsabet Civil Suit No. E093 of 2022 pending the hearing and determination of the application inter partes.b.That this honourable court be pleased to issue temporary orders for the release of motor vehicle registration number KCL xxxx to the respondent pending the hearing and determination of the application inter partesc.That this court be pleased to issue stay of execution of the orders issued on 23rd march 2022 in Kapsabet Civil Suit No. E093 of 2022 pending the hearing and determination of the appeal.d.Costs.

2. The facts leading upto the present application are that the applicant filed an application dated 7th March 2022 on 20th March 2022 seeking orders to review the orders issued on 3rd November 2020. The learned trial magistrate allowed the application on the basis that it was unopposed. The applicant being dissatisfied with the decision of the court filed the present appeal.

Applicant’s Case 3. The applicant contends that he was served with the application dated 7th March 2022 on 22nd March 2022 yet the same was coming up for hearing on 23rd March 2022. While filing the replying affidavit on 23rd March 2022, the court allowed the application before the response was filed. It is the applicant’s case that he was served via email on 22nd March with a view of frustrating the applicant.

4. The applicant will suffer substantial loss unless the present application is allowed. He cited Order 42 Rule 6 of the Civil procedure rules and attached a copy of electronic email service delivery receipt as proof of late service.

Respondent’s Case 5. The respondent opposed the application and stated that the applicant failed to file a response despite being properly served and cited Order 42 Rule 6 of the Civil Procedure Rules.

6. On substantial loss, counsel for the respondent cited the case of James Wangalwa & Another vs Agnes Naliaka Cheseto (2012) eKLR where the court held;“No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the Civil Procedure Rules. This is so because execution is a lawful process…The Applicant must establish other factors which show that the essential core of the Applicant as the successful party in the appeal. This is what substantial loss would entail, a question that was aptly discussed in the case of Silverstein v Chesoni [2002] KLR 867, the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quobecause such loss would render the appeal nugatory.”

5. It is the respondent’s case that the applicant has not volunteered security; they have not demonstrated any of the principles of Order 42 Rule 6 and the application should therefore be dismissed with costs to the respondent.

6. Upon perusing the application, response thereto and submissions, I have identified the only issue for determination, being whether the orders for stay of execution should issue.

7. Order 42 Rule 6 (2) of the Civil Procedure Rules provides;(2)No order for stay of execution shall be made under subrule (1) unless—(a)the court is satisfied that substantial loss may result to the Applicants 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 Applicants”.

8. In order to determine whether the applicant is deserving of orders for stay of execution, the court must determine;a.Whether substantial loss will occur if the orders are not grantedb.Whether the application was made without delayc.Security

Substantial loss 9. I am guided by the case of James Wangalwa & Anor. Vs Agnes Naliaka Cheseto 2012 (eKLR) where the court held;“Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”

10. The subject matter of the dispute is the motor vehicle registration number KCL xxxx. The applicant is apprehensive that if the vehicle is released the 1st appellant may be highly prejudiced if the same is damaged while in custody of the respondent. If anything is to happen to the said vehicle, it is my view that the appeal would be rendered nugatory and thus substantial loss will be occasioned to the applicant.

Whether the application was made without delay 11. The impugned ruling was delivered on 23rd May 2022. The present application was filed on 24th May 2022. It is not in dispute that the application was filed without undue delay.

Security 12. The purpose of security was stated in the case of Arun C. Sharma vs Ashana Raukundalia t/a Rairundalia & Co. Advocates & 2 others [2014] eKLR, the court stated:……The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. It is not to punish the judgment debtor……. Civil process is quite different because in civil process the judgment is like a debt hence the applicants become and are judgment debtors in relation to the respondent. That is why any security given under Order 42 rule 6 of the Civil Procedure Rules acts as security for due performance of such decree or order as may ultimately be binding on the applicants. I presume the security must be one which can serve that purpose.”

13. I note that the applicant is silent on the issue of security. However, I take note that the subject matter is not a money decree and the orders in dispute are for the release of the vehicle to the respondent. Given that the 1st appellant has settled some of the storage charges, I find that this conduct can be deemed to be a form of security. The intention of the applicant is clear. Therefore, I find that in the circumstances, the condition as to security can be satisfied by having the status quo maintained wherein the vehicle shall remain in the possession of the 2nd appellant.

14. Stay orders are discretionary in nature and for that reason it is my view that it is very crucial to determine whether the applicant was granted a fair hearing during the application as it is in the interest of justice that a party is not condemned unheard. What is of interest is whether the respondent served the applicant with the application merely a day before the same was to come up for hearing. I have perused the supporting affidavit and my attention is drawn to annexure ER2 which is a receipt of the application showing it was served via email on March 22nd as alleged by the applicant. It is trite law that he who alleges must prove and the applicant has proved he was served late contrary to the averments at paragraph 5 of the replying affidavit. As a matter of fact, the only reference of any service that is accompanied by proof is that of the applicant. The respondent has not made any effort to prove that the application was served on 15th March 2022.

15. In the circumstances it is evident that the respondent, in an attempt to steal a march against the applicant, served him with an application the day before the hearing. This is an abuse of the court process and cannot be allowed as it is not in the interests of justice. The applicant deserves the opportunity to be heard and therefore the application for stay of execution pending the hearing of the appeal is granted. The vehicle shall remain in the custody of the 1st appellant pending the determination of the appeal. Costs shall be in the intended appeal.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 12TH OF JULY 2022. E. K. OGOLAJUDGE