Kyengo Munyithya v Kimwele Ndambu Mbuthi [2015] KEHC 1842 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

ELC  APPEAL NO. 327 OF 2013

KYENGO MUNYITHYA ………………………………..………………………. APPELLANT

VERSUS

KIMWELE NDAMBU MBUTHI….………..…………………......……..…….RESPONDENT

(AN APPEAL FROM THE JUDGMENT DELIVERED ON 29TH AUGUST, 2013 BY HON. H.N. NDUNG’U – C.M. AT GARISSA CHIEF  MAGISTRATE’S COURT CIVIL SUIT NO. 30 OF 2012)

RULING

On 29th August 2013, Ms H.N. NDUNGU (Chief Magistrate) delivered a judgment in Garissa Chief Magistrate’s Court Civil Suit No. 30 of 2012 in which the parties herein were each claiming ownership of some un-surveyed piece of land situated in Kyuso Sub-location, Kimangao Location Kyusu Division in Kitui County.  It is not clear why a dispute involving land situated in Kitui County was heard in Garissa Court but that is not the subject of the application now before me.  In the said judgment, the trial magistrate declared the Respondent (who was the plaintiff in that case) as the rightful owner of the land and issued an injunction restraining the Appellant (who was the defendant) from encroaching onto the said land.

Aggrieved by that judgment, the Appellant/Applicant filed a Memorandum of Appeal in this Court on 26th September 2013.  It is also clear from the materials placed before me that on 22nd January 2014, the Plaintiff in that case (now Respondent) filed an application in the subordinate Court seeking to execute the orders granted by that Court.

The Appellant/Applicant has now moved this Court by a Notice of Motion dated 14th April 2014 and filed herein on 15th April 2014 citing Order 42 Rule 6 of the Civil Procedure Rules seeking a stay of execution in respect of the judgment in Garissa Chief Magistrate’s Court Civil Suit No. 30 of 2012 pending the hearing and determination of this Appeal.  The application is based on the grounds on the face of the same and supported by the Applicant’s affidavit in which it is deponed, inter alia, that the trial Court presided over a matter that was beyond her jurisdiction and the appeal has high chances of success and that despite the pendency of this appeal, the Respondent seeks to execute the judgment of the lower Court and further, that the Appellant/Applicant will suffer irreparable and substantial loss if execution of the judgment in the lower Court is not stayed pending this appeal.

The application is opposed and in his replying affidavit, the Respondent depones that the subject matter is un-registered land and therefore un-likely to be alienated and that the Appellant/Applicant is only bent on delaying his enjoyment of the fruits of the judgment.

Submissions have been filed by counsels for both parties.

I have considered the application, the rival affidavits and annextures thereto as well as the submissions by counsels.

As stated above, this application is founded under the provisions of Order 42 Rule 6 of the Civil Procedure Rules.  Order 42 Rule 6(2) of the Civil Procedure Rules which provides for stay in case of appeal states as follows:-

“No order for stay of execution shall be made under sub-rule (1)

unless:-

The Court is satisfied that substantial loss may result to the applicant unless the order is made and the application has been made without unreasonable delay, and

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 applicant”

It is therefore obvious that this Court’s jurisdiction to grant an order of stay pending appeal under Order 46 Rule 6 of the Civil Procedure Rules will be determined on the following:-

The Court is satisfied that substantial loss may result to the applicant unless the order of stay is made.

The application is made without un-reasonable delay.

The applicant gives such security as the Court may order for the due performance of such decree or order that may ultimately be binding on the applicant.

With regard to the issue of security, an applicant should, as a matter of good faith offer or propose any security or at least indicate a willingness to abide by such orders as the Court may require.  I think in the circumstances of this case, the applicant has substantially done so in paragraph 9 of his supporting affidavit.

The Central issue that this Court must determine in an application such as this is that of substantial loss.   Platt Ag. J.A (as he then was) addressed that issue in the case of KENYA SHELL LTD VS KIBIRU 1986 K.L.R  410 at page 416 as follows:-

“It is usually a good rule to see if Order XLI Rule 4 of the Civil Procedure Rules can be substantiated.

If there is no evidence of substantial loss to the applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss in its various forms is the cornerstone of both jurisdictions for granting a stay.  That is what has to be prevented”

In the same case, Gachuhi Ag. J.A (as he then was) addressed that issue as follows:-

“It is not sufficient by merely stating that the sum of Ksh. 20,380/= is a lot of money and the applicant would suffer loss if the money is paid.  What sort of loss would this be?  In an application of this nature, the applicant should show the damages it would suffer if the order for stay is not granted”

That is the route that Courts have taken in applications  such as this one – see for example SILVERSTEIN VS CHESONI (2002) 1 K.L.R 867and also MUKUMA VS ABUOGA 1988 K.L.R  645.

The Applicant herein has argued that his appeal has high chances of success.  However, under Order 42 Rule 6 of the Civil Procedure Ruleswhich I have set out earlier, the applicant need only satisfy the three requirements indicated above.   Strictly therefore, in determining an application under Order 42 Rule 6 of the Civil Procedure Rules, the Court need not consider the strength or otherwise, of the appeal.  That is only a requirement under Order 5(2) of the Court of Appeal Rules.  This Court will therefore not be tempted into considering the merits of the appeal as the law does not allow me to do so.

Having said so, what substantial loss has the Applicant demonstrated in this case?  In paragraph 5 of his supporting affidavit and which is the only averment that refers to substantial loss, the applicant has deponed as follows:-

“That I stand to suffer irreparable and substantial loss if execution and proceedings in the lower Court are not stayed in that I will be driven from the seat of justice and my Constitutional right on access to justice will be violated contrary to the law”

There is no evidence of what substantial or irreparable loss he will suffer if a stay is not granted.  He has made a bare allegation yet the onus is on him to satisfy the Court about the substantial loss, if any, that he is likely to suffer if a stay is not granted.  That is the cornerstone of an application such as this one as was held in the KENYA SHELL case (supra).   In the absence of proof of such substantial loss which is a requirement of an application of this nature, the applicant is not deserving of the order of stay and his application must be dismissed.

The Applicant was also required under the law to file this application “without unreasonable delay”.  The judgment appealed from was delivered on 29th August 2013 and the appeal filed on 26th September 2013.  However, it took the Applicant upto 15th April 2014 to file this application a period of seven (7) months which is not even explained. In my view, I consider that period to amount to “unreasonable delay” which would therefore disentitle the Applicant to the orders sought.  Besides, it is clear from the record that the Appellant only moved this Court when the Respondent filed an application in the subordinate Court on 22nd January 2014 seeking to execute the decree in Garissa Chief Magistrate’s Court Civil Case No. 30 of 2012.  He has therefore not demonstrated any good or sufficient cause why this Court should grant him a stay when he went to sleep and only woke up when the process of execution commenced.  It must of course be remembered that whereas a person exercising his undoubted right of appeal should not have the same being rendered nugatory in the case of success, it is equally important that a successful litigant should not be deprived of the fruits of his judgment otherwise than for sufficient cause.  In the circumstances of this case, I see no good or sufficient cause to warrant the grant of the order of stay sought herein.

The Applicant has also extensively deponed that he would be driven from the seat of justice and that his Constitutional right to access to justice will have been violated if the order of stay is not granted.  The short answer to that is that he had his day in Court and secondly, it is a hollowed maxim of equity that delay defeats equity or put in other words, equity aids the vigilant and not the indolent.  As I have found above, the Applicant was clearly guilty of unreasonable delay in filing this application.

Ultimately therefore, the Applicant’s application dated 14th April 2014 and filed herein on 15th April 2014 is accordingly dismissed with costs.

B.N. OLAO

JUDGE

26TH OCTOBER, 2015

26/10/2015

Before

B.N. Olao – Judge

Gichia – CC

Mr. Ngala for Appellant – absent

Mr. Kagio for Nderi for Respondent – present

COURT:      Ruling delivered this 26th day of October, 2015 in open Court.

Mr. Ngala for Appellant absent

Mr. Kagio for Mr. Nderi for Respondent – present.

B.N. OLAO

JUDGE

26TH OCTOBER, 2015