Lang’o Odhiambo v Wilson Ndolo Ayah, Joseph Kamotho, Japheth Lijodi & John Kiplangat Cheruiyot) [2015] KEHC 2479 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO.  2086 OF 1997

LANG’O ODHIAMBO ………………………….………….PLAINTIFF

VERSUS

1. WILSON NDOLO AYAH  ………....………………1ST DEFENDANT

2.  JOSEPH KAMOTHO………..……………………2ND DEFENDANT

3.  JAPHETH LIJODI .……………………………3RD DEFENDANT

4.  JOHN KIPLANGAT CHERUIYOT)……..........……4TH DEFENDANT

RULING OF THE COURT

Before me  for determination is the 4th defendant’s application  brought  by way of Notice of Motion under the provisions of Article  159(2)(d) of the Constitution Section 1A, 1B and 3A of  the Civil Procedure Act and  Order 42  Rule  6  of the Civil Procedure Rules  and “all other enabling  provisions  of the Law.”

The applicant John Kiplangat Cheruiyot seeks  from this court orders:

Spent

A production order do issue for the production of the applicant in court  on the date fixed  for the hearing of the application.

There be  stay and a suspension  of the orders of committal made by the Deputy Registrar  on  24th August  2015  committing the applicant to civil jail  pending the hearing  and determination of this application.

There  be stay and or suspension  of the orders  of committal made  by the Deputy Registrar  on 24th August  2015 committing  the applicant to civil jail  pending the hearing and determination of the applicant’s appeal dated 31st  August 2015.

Costs be provided for.

The application is supported  by  the affidavit  of the John Kiplagat Cheruiyot  and on the grounds that the applicant  was on 24th August 2015  committed  to civil jail for a period of 6 months by the Deputy Registrar for his  inability to satisfy  decree and judgment  of this court and that  being dissatisfied  with the said  committal order he has preferred  an appeal to this court (judge) which appeal is arguable  and has high chances of success.

The applicant  contends  that should the  application not be  granted, the appeal shall be rendered nugatory as he would  have served the prison term since it is highly unlikely that the  appeal will be heard and  determined before the applicant fully  serves the civil jail term, and  that he will suffer irreparably as there is no way to compensate  for jail term that would have been served.  The applicant  also avers  that the  order committing him  to civil jail  is manifestly unjust  as the  plaintiff did not  pursue  any alternative means of  enforcing the decree; and that  the  Deputy Registrar  wrongly exercised  discretion where there was none  and where  it was improper  to do so.

In his supporting affidavit, the applicant  deposed that he has no means  of income  to settle  decree as he is  retired and that the civil jail option is an improper  way of enforcing  a decree  where a judgment  debtor  is unable  to pay as  opposed to  refusal to pay, civil jail  being a  last resort  remedy.  He further deposes that the decree holder has not demonstrated that he has exhausted  all other  modes of enforcing decree before  resorting  to committal to civil jail.  Further, that  he is an old man  of  declining  health  and therefore  his committal  to jail is grossly oppressive  and would  adversely affect him since his appeal, has high chances  of success.  The applicant  also accuses  the Deputy Registrar  of failing to  exercise  her discretion correctly  by failing to take into account  several factors including constitutional safeguards that are  inherent  in  proceedings for  committing a judgment  debtor to civil jail.  He annexed  copy of his  Memorandum of Appeal dated 31st August  2015 challenging the decision of the  Deputy Registrar  Honourable Mutuku(Mrs) made on 24th August 2015  and a copy of defence in this suit.

The respondent/plaintiff   opposes  the application.  His counsel filed  grounds of opposition dated 8th  September 2015  contending that  the application is frivolous, vexatious  an abuse of  the court process, incompetent and should  be dismissed  or struck out  with costs  to the decree holder.  The respondent also avers that the judgment debtor/applicant’s filed application, supporting affidavit are all undated and hence they are incurably  defective and should be struck  out.  Further, that no leave has been  applied for and no valid Notice of Appeal has been filed against  the judgment or decree delivered on 5th February 1999 hence no valid  grounds exist to dispute the lawful  court order dated 24th August  2015  in execution thereon.

The respondent further states that the valid  court order of  the Deputy Registrar  in execution  dated  24th August  2015 should be  affirmed and  that the applicant has failed to make any  reasonable  offer  to settle  the debt  for the court’s consideration  as shown by a copy of proposal dated 15th Dec ember 2012  which  he failed to honour.

The parties respective advocates appeared  before me  on 9th September 2015 and urged  their respective  client’s  positions orally, restating  what is contained in the  application and grounds of  opposition, with the  applicant’s counsel citing  authorities in support of his client’s case for  the orders sought  herein.

Mr Ataka representing the applicant judgment debtor emphasized that his  client was  unable to settle  decree herein  as he has no  means, and not  that he  has refused to settle.  In  addition, counsel for the applicant  submitted that Section 38 of the Civil Procedure Act and Order 22 Rule 34  of the Civil Procedure Rules are clear as to the circumstances  under which a judgment debtor can be committed to civil jail  for nonpayment of decretal sum, which circumstances  were not proved  to exist  at the  time the  Deputy Registrar  made the  order  committing  the applicant to civil  jail for  a period of  6 months.

On the application   for stay  of enforcement  of the order  of  the Deputy Registrar  pending  appeal.  Mr Ataka submitted that  the applicant’s  appeal was  arguable  and had high chances of success which  appeal shall be rendered  nugatory unless  the orders herein sought are granted.  Further, it was submitted  on behalf of the applicant that  the decree holder did not  satisfy  the Deputy Registrar during the  hearing  of the Notice to show cause  for committal, that  the judgment debtor/applicant had means, was evading to settle  decree or that he was about  to leave  the jurisdiction  of the  court  or was transferring   his property.  Mr Ataka  relied  on  two decisions Beatrice Wanjiku & Another V The Honourable Attorney General & Another,  HC Constitution Petition No. 190/2011 and HCCA 238/2013 Nelson Njuguna  Kiiru & Another V Jesse Muthiga in support  of his client’s propositions.  He also relied   on the  provisions  of the International Covenant on Civil and Political Rights  as applicable  by dint of  Article  2 (5) of the Constitution of Kenya as relied  on by Majanja  J  in the Beatrice Wanjiku(supra) case.

Mt Ataka  urged the court to  order for the release of the appellant  pending  hearing  and determination  of the appeal as filed, noting  that  the applicant could still be  ordered to serve  the jail term if  the appeal is dismissed.

In opposing  the application, Mr  Anyango Ogutu advocate for the  respondent /decree holder submitted, relying on the filled grounds of objection dated 8th September 2015  as detailed  above and maintained  that there is  no  appeal filed  in respect  of the Deputy Registrar’s  decision since no Notice of Appeal  was filed and or served upon  the concerned  parties  in the  matter.  Further  that in the absence  of the appeal  filed against the judgment  and decree  of this  court  passed  in 1999, the  application herein cannot stand.  Mr Onyango Ogutu further  submitted that  no reference  was filed  before  this court and hence all documents  filed are incompetent, frivolous  and  should be dismissed.

Mr Onyango  advocate also submitted that  execution by  way of attachment and sale  of the judgment debtor’s movable properties  was levied  but no property was  found capable of settling decree  hence  the resort to Notice to show cause.  He also submitted that the Judgment  debtor was once  declared bankrupt  and the  respondent only moved the  court for  execution by way of Notice to show cause  after the Judgment debtor was discharged from bankruptcy.  It was also submitted on behalf of the respondent  that the allegation that the judgment debtor  is unable to pay decretal sum so he cannot  pay is untenable since he  executed a proposal  on 15th December 2012 to settle  the decretal  sum by monthly installments  of kshs 50,000  which he has never honoured  and that he  had changed advocates  severally.  Further, that the Deputy Registrar  was satisfied  that the  judgment debtor is a difficult person  before committing  him to  civil jail and after he was brought  to court  under a warrant of arrest from  Nandi.  Mr Onyango urged the court to dismiss the application with costs.

In brief rejoinder, Mr Ataka  submitted that the decision of the Deputy Registrar  in execution under Order 22 of the Civil Procedure Rule is appealable  as of right under Order 49 of the CPR and that no proposals  for  settlement  have been made  by the applicant as he  is unable  to raise any money hence the  application, in order not  to defeat  the ends of justice.

I have carefully considered  the application  by the applicant/4th defendant/judgment debtor/appellant, his  grounds  and supporting  affidavit  coupled  with the able  submissions  by his counsel Mr Ataka and the authorities  relied  on.  I have also considered the respondent, plaintiff/decree holder/respondent’s grounds of opposition and the able submissions by his counsel Mr Onyango Ogutu.

The only issue  for determination  in my view, is whether  the applicant  has made  out a  case for stay of or suspension of  enforcement  of the order  of the  Deputy Registrar on 24th August 2015 committing  the Judgment debtor  to civil jail, pending  hearing and determination of an  appeal against  the Deputy Registrar’s  decision.

The applicable  law for stay of enforcement of an order or decree pending appeal is Order 42 Rule  6  of the Civil  Procedure  Rules, and the principles  set there under  guiding  the grant  of stay of  execution pending appeal are settled.  These principles are:

The court  must be satisfied that  substantial loss may result  to the  applicant unless  the order is made; that 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.

In granting or refusing stay of execution pending appeal, the court exercises discretion which discretion must, however, be based on sound judicial principles, as espoused in Sections 1A and 1B of the Civil Procedure Act, which sections espouse the overriding objectives of the law, thereby enlarging the conditions under Order 42 Rule 6(2) of the Civil procedure Rules for stay pending appeal.

On substantial loss the  applicant’s  counsel contended that committal  to Civil Jail once served  cannot be  reversed  or compensated  by  damages  and that the applicant who is a retired elderly person who suffers from ill health  will be prejudiced if he serves  a jail term of 6 months only  for this court to reverse the committal order, which will, in essence render the appeal nugatory.

The respondent on the other hand  maintained that he had tried  to execute  decree by  way of attachment  of  properties belonging to the applicant  which bid was unsuccessful and hence, the notice to show cause.  Further, that there is no notice of appeal or appeal or reference filed herein to warrant a stay of execution pending the aforesaid.

My rendition on the above issue is that Order 49 Rule 47(1) (b) (x) (2) and (3) are clear that an appeal from the decision of the Deputy Registrar under Order 22 of the Civil Procedure Rule lies to the Judge in chambers within 7 days from the date of the Deputy Registrar’s decisions, by way of Memorandum of Appeal.

In this case, the decision of  the Deputy Registrar committing  the judgment debtor to  civil Jail  was made on 24th August  2015   and  on 31st August  he lodged  a Memorandum of Appeal  which  is also annexed to his supporting  affidavit.  Effectively, the appeal filed is competent before this court and in addition, as the same was annexed to the supporting affidavit which was served upon the respondent’s counsel, service did take place.  There is no legal requirement   for Notice of Appeal to be lodged or served upon the concerned parties.  Notice of Appeal would only be required where the appeal is from the decision of this court to the Court of Appeal, which is not the case here. Equally, there is no requirement for a reference to be filed from the Deputy Registrar’s order and such reference would be meaningless where the law is clear and to how the Judgment debtor can challenge the execution process as has been done in this case.

The applicant also submitted that the appeal as filed is arguable and has high chances of success.  That may be so.  Nonetheless, the requirement for demonstration that the appeal is arguable in order for a stay pending appeal to issue is in the Court of Appeal.  It is not for this court at this stage to venture into the arguableness and or merits of the filed appeal as that would prejudice the appeal itself.  However, this is not to say that this court cannot, in one sentence state whether or not the appeal as filed is frivolous.  The applicant has submitted that under Section 38 of  the Civil Procedure  Act, execution of a  money decree by way of committal  to Civil Jail  can only be effected if the circumstances there under  are satisfied  i.e that the judgment debtor  is likely  to leave  the jurisdiction of  the court or is  evading  to pay the  decretal sum by transferring  of  his properties to third parties which  is not  the case here.  It was  contended  that the applicant is  simply not possessed  of  means  to pay and that the  Deputy Registrar  should not  have committed  him to civil jail  for his inability  to settle  decree  but for  his refusal  to pay the decretal sum.

On the other hand, the respondent maintained that the applicant had refused to pay the decretal sum even after making a simple proposal on 15th December 2012 to settle decree in monthly installments of kshs 50,000 from 31st December 2015.  Further, that he had  been evasive  and had to be  dragged  to court under a warrant of arrest  after he failed  to attend  court  and show cause, hence  he cannot be heard to say that  he is unable  to settle  decree  herein.  The respondent  also  contended  that in any event , no appeal had been filed  challenging  the judgment  and  decree passed  in 1999 hence  the judgment debtor cannot escape  execution.

On the issue  of arguableness of the appeal, I reiterate that an applicant seeking orders  of stay pending appeal from  the order  of the subordinate  court , tribunal/body  or Deputy Registrar  to this court  is not required to prove that  they have  an arguable appeal  unlike if it  was an application  for stay pending  appeal to the  Court of Appeal.  See Nakuru HCC 211 of  1998 Martha Njeri Wanupite &  3 Others V Peter Machewa Mwangi &  3 Others.  Nonetheless, nothing prevents this court  from establishing  whether the appeal is frivolous.  Order 42 Rule 6(2) gives this  court in its appellate jurisdiction  discretionary power to stay of execution pending appeal on sufficient cause  being established  by the applicant.  The incidence of the legal burden of proof on matters which the applicant must prove of course, lies with the applicant.  See Jeny Luesby V Standard  Group Ltd (2014) e KLR.

In Absalom Dorb V Tarbo Transporters  (2013) e KLRthe  court held:

“ the discretionary relief of  stay of  execution  pending appeal  is designed  on the  basis  that no one  would be  worse off by virtue of an order of the  court; as such order does not introduce  any disadvantages, but administers the justice that the  case deserves this in recognition that  both parties  have rights, the appellant  to his appeal  which includes  the  prospects  that the appeal will be  rendered  nugatory; and the decree  holder  to the decree  which includes  the full benefits under  the decree.  The court in balancing the two  competing  rights focuses on their  reconciliation which is not a question  of discrimination.”

Being  a discretionary power, it must  therefore be exercised cautiously and judiciously  and  not capriciously.  The applicant  cannot however, in my  view,  hide  under the provisions  of the  ICCPR and the  Constitution to defeat  a decree of a competent  court of  law making  him liable  for a  contractual debt, by laying  claim  to protection of his civil liberty  which is being limited by way  of civil jail.  That right  which is guaranteed  by the Constitution  can  only be enjoyed  subject  to the  rights  of others  and existing laws.

The Deputy  Registrar, according  to record, noted the reluctance  of the judgment debtor  in settling the decretal  sum despite promises  and that  conduct  may have influenced her decision have him committed  to civil jail.  She did exercise  her powers granted by Order 49 of the Civil Procedure Rules.

Nonetheless, there is a limitation on execution by way of arrest  and detention   in prison  of any person , under  the proviso of Section 38 of the Civil Procedure Act that:

“ provided  that where the decree is for payment  of money, execution by detention in prison shall not be ordered   unless, after giving the  judgment  debtor an opportunity of showing  cause why he should not be committed to prison, the court, for reasons to be recorded  is satisfied-

(a) That the Judgment debtor, with the object or  effect of obstructing or delaying the  execution of the decree,

Is likely to abscond or leave the local limits of the jurisdiction of the court  or,

Has after institution of the suit  in which the decree was passed, dishonestly transferred, concealed  or removed any part of his property , or  committed any other act of  bad faith in relation to his property; or

(b)  That he judgment debtor  has, or  has had since the date of the decree, the  means  to pay the amount of the decree, or some substantial part thereof, and  refuse or neglects, or  has refused  or neglected, to pay the  same- but in calculating such  means there shall be left out  of account any property  which, by, or under any law, or custom, having  the force of law, for the  time being  in force, is exempt from  attachment  in execution of the  decree or

( c) That  the decree is for a sum  which the  judgment  debtor was  bound in a judiciary capacity  to account.

From the above  proviso, a decree holder  is not  entitled to exercise  the right to have  the judgment debtor  arrested  and committed to  civil jail for any specified period  of time  unless the conditions  in the proviso are met.

More importantly, the Decree holder  must show  that  the judgment debtor has means  but is evading to pay the  decretal  sum.

I have perused the Notice to show cause  proceedings for 24th August  2015  and the attendant  ruling by Honourable Mutuku Deputy Registrar.  The  proceedings  show that  the decree holder’s counsel submitted that  the judgment debtor  was declared bankrupt  at one  point but  he was discharged  after  a challenge to the bankruptcy order was made  albeit  no such  orders  or proceedings  were availed  before the  Deputy Registrar.  The proceedings  also show  the judgment debtor  saying  that he  had been  struggling  financially and trying  to get  to his feet.  He acknowledged  the debt  and begged  the court  to allow  him time  to raise  money from his small scale farming venture.

From the  above position  on record, this  court  is unable  to find that  the appeal as filed  is frivolous.  The matter  of inability  and  not refusal to pay is acknowledged by Section  38 of the Civil Procedure  Act.

I note that albeit  there was an attempt  to execute decree by way of attachment  and sale  of the judgment debtor’s movable  property vide warrants  dated 10th January 2008, the  said warrants were returned  to  court by Intime Services (K) Ltd Auctioneers  after the warrants  expired  before the assets  of the judgment debtor’s  were pointed  out and  from there, notice to show cause proceedings  were commenced  against  the judgment debtor.  In other words, the Decree Holder has never  succeeded in tracing  the judgment debtor’s  movable  or immovable  property  for attachment  and sale to satisfy  decree herein.

I also note that no affidavit  has been sworn by the decree holder  to indicate  that indeed  the judgment debtor  is evasive in his refusal  to pay the decretal sum.  It is not disputed that the judgment debtor has not been examined  on his means  or otherwise to satisfy the amount of the decree.  In the Beatrice Wanjiku (supra) case, though persuasive, I am  in agreement  with Majanja  J that  an application  for committal  to civil jail may  be disallowed if the judgment debtor  is unable  to pay the judgment debt  as a result of poverty or other sufficient  cause.

That  in itself does not however, discharge the judgment debtor from liability or from settling  the judgment  debt, since  committal to civil jail is only one  of the modes of execution of decree.    It is to say that  a jail term once served  is irreversible and in this case, I  would agree  with counsel for the  applicant’s submissions  that should the appeal  succeed and  the judgment debtor  is found  to have  served a  six month civil  jail term, that in itself  renders the appeal nugatory.

There is  indeed a proposal made in 2012  to settle the decretal  sum by monthly installment of kshs  50,000/- with effect  from 31st December 2012 which admittedly has never been  honoured to date.  The respondent’s  counsel however submitted that  that undertaking to pay by installments was made or put  forward when the judgment debtor  was under  arrest  as confirmed  by the court  record of 10th January 2013, an indication that  the judgment debtor  was hard pressed  or compelled by the prevailing  circumstances  then, that is, the fear  of going  to serve  a civil jail  to make  a proposal which he knew he  was incapable of honouring  at  that time. This is so as it has  not been shown that he had  means  or that  he has since been  possessed  of  the means to enable  him settle  decree.

In addition, the uncontested fact that the judgment debtor  was adjudged bankrupt although he was discharged  is  in my view   a clear indication  of his struggles  to remain a float and  meet his  legal obligations.

Regrettably the respondent  has not divulged  much information that would  assist  this court in  determining whether the applicant  has all along since 1999 by design conducted  himself in a manner  inconsistent  with his  averments  and deposition as to his capability  to settle  decree.  The respondent   has not demonstrated what means the judgment debtor has that he is hiding from the long arm of the law.  This court, indeed does not make orders in vain.  It is expected that court orders are enforced  to the letter, but with  the assistance  of the beneficiary thereof.

As the applicant  has approached  this court by way of an  appeal, It is not the intention of  this court  to deny the decree  holder  his benefit  of a lawfully  obtained judgment.  However, the right of  appeal is a fundamental  right enshrined  and guaranteed  by the Constitution and other  law (Order 49) of the Civil Procedure  Rules.  That right when   exercised  guarantees an appellant   the right to access  justice and it would be a  traversity of  justice   if this court  were  to curtail that right  thereby  ousting  him from the judgment seat, especially  in the absence  of any evidence that the judgment debtor was examined on his means  and or that the decree holder  exhausted  all other less restrictive  or extrusive  remedies  under Section  38 of the Civil Procedure  Act for  enforcement  of a monetary decree of the court.

In Vijay Morjana V harns Horn Junior & another, HCC 285 of 2004 the court held  that the decree holder  who desires  to have the  freedom of a judgment  debtor restricted  must show  that he has  exhausted  all other means to secure  payment  and that the  only options  left  is incarceration.

In my view, and in view of all the above considerations,I find that the  appeal, if successful, would be rendered  nugatory, as the applicant would have  served the entire civil jail term of 6 months  since there  is no guarantee that  this appeal will be determined  before the  end of  the jail term.

On the  second condition under  Order 42  Rule 6(2)  of the Civil Procedure  Rules that  the application must  have been filed without  undue delay, I find  that the order for committal to civil  jail was made on 24th August  2015  and the application  herein  made  on 1st September  2015, which  was within 8 days of the order which in my view, was filed with alacrity.

The last  condition to be fulfilled by the applicant to warrant  a stay is that  he must offer  security or the court may direct  the deposit   of such  security  for  the due performance  of the decree  or order  as may ultimately be binding on the applicant.

In this case, the applicant has not  offered  any security.  However, that failure  to offer security  does not  preclude  this court  from  making  such order  for security, since  the applicant  cannot  have it  both  ways;  that he  is unable  to settle  decree  and that  he is  unable  to raise  security  for the  due performance  of decree.  The applicant deposed that  he is a small scale  farmer  and if let  free, he will work on his farm and raise  the required  decretal  sum.  He did not  mention what type  of farming  activities he is  engaged in.  it is also  submitted that he is an old man, a retired  civil servant  and of poor health.  No medical documents were availed to court to show his state of health.

The decree has been pending execution for over 17 years.  The applicant contends that no prejudice  will be suffered by the respondent since if  the appeal is dismissed, the applicant can still serve  the civil jail.  This court  notes  that the respondent has already  paid for  the applicant’s upkeep  in civil jail for a period of 6 months.

This court is inclined to make  orders that will meet  the ends of justice and balance  the interests  of both parties.  Since   the applicant insists  that he is still willing  to settle decree, which is  the reason for  his committal to civil jail, and  in view of his advanced  age, I would in exercise  of my discretion  make the following orders:

1. That there shall be stay of enforcement  of decree   by way of committal of the judgment debtor /applicant to civil  jail as ordered  by the Deputy Registrar on 24th August 2015  pending hearing  and determination  of the appeal filed on 1st September  2015 on condition that :

The applicant  deposits into  court security for the due performance of decree, whether  by way of land title or motor vehicle(s) log book(s) or bank guarantee to the value  of kshs 3,000,000 (three million)Kenya shillings, which security need not be in his own name.

The applicant refunds  to the respondent  all the sums paid to the G.K. Prisons  for  his upkeep  for the period of the committal to civil jail.

2.  The applicant shall be released from  civil jail upon executing  a personal  bond  of kshs 500,000/- together with one  surety  of similar amount  to enable  him meet  conditions 1(a) and 1(b)  above within 14 days  from the date hereof and in default, a warrant  of arrest to issue and the suspended order of committal  to civil jail shall be reinstated unless the orders herein are varied  by the court.

3.  The appeal to be prosecuted and concluded within 12 months of today.

4.  The applicant shall pay costs of  this application as it has  taken him 17 years  of engaging  the decree holder  in endless legal gymnastics, which  are likely to abuse the court process..

Dated, signed and delivered at Nairobi this 10th day of September 2015.

R.E. ABURILI

JUDGE

10/9/2015

At 11. 30 am

Coram R.E. Aburili J

C.A. Samuel

Mr Ataka  for applicant

Mr Omollo   for respondent

COURT-   Ruling  read and pronounced  in open court  as scheduled.

R.E. ABURILI

JUDGE

10/9/2015