Mbae v Kiiru & another [2025] KEHC 4089 (KLR)

Mbae v Kiiru & another (Civil Appeal 28 of 2024) [2025] KEHC 4089 (KLR) (27 March 2025) (Ruling)

Neutral citation: [2025] KEHC 4089 (KLR)

Republic of Kenya

In the High Court at Thika

Civil Appeal 28 of 2024

FN Muchemi, J

March 27, 2025

Between

David Mwirigi Mbae

Appellant

and

Eva Mwihaki Kiiru

1st Respondent

Peter Kamicha Njueni

2nd Respondent

Ruling

Brief facts 1. The application dated 31st January 2024 seeks for orders of stay of execution in respect of the ruling and orders in Ruiru SPMCC No. E335 of 2021 delivered on 26th January 2024 pending the hearing and determination of the appeal. The application is further seeking for orders of setting aside, varying or discharging the orders issued on 26th January 2024.

2. In opposition to the application, the respondents filed a Replying Affidavit dated 28th June 2024.

Appellant’s/Applicant’s Case 3. The applicant states that his right to liberty is at risk as he is at the verge of being arrested and committed to civil jail pursuant to the orders of the Senior principal Magistrates Court at Ruiru issued on 26th January 2024. The applicant further states that while allowing the respondents’ Notice to Show Cause why the appellant should not be committed to civil jail, the applicant had on record a replying affidavit to the said Notice to Show Cause as well as an application to set aside the default judgment.

4. In the circumstances, the applicant avers that the Magistrate acted in flagrant abuse of the laid down procedure, the law and good order since the application dated 23rd January 2024 had been listed for directions on that material day. Consequently, the applicant argues that the trial court ought to have first considered his application and replying affidavit by issuing directions for its hearing.

5. The applicant avers that the Notice to Show Cause arises out of a default judgment in which he had not been served nor made aware of the existence of the suit at Ruiru.

6. The applicant states that according to the order made on 24th January 2024, the application was to come up for directions on 26th January 2024 but the learned magistrate did not direct that the matter will be mentioned in open court. The applicant further states that up until 9. 00 a.m. no link had been sent to his advocate’s email. This gap prompted his advocates to write several emails requesting for the link which was not forthcoming.

7. The applicant avers that his counsel received an email from Ruiru Law Courts way after 9. 00 a.m. where she was informed that the matter will be mentioned in open court. The applicant further avers that his advocates’ offices are in Nairobi and despite her efforts to attend the matter in open court, she arrived after the matter had been called out and warrants of arrest issued against him.

8. The applicant states that he is aggrieved by the manner in which the learned trial magistrate conducted herself in the proceedings wherein she acted in flagrant abuse of the due process by denying him his right to fair hearing.

9. The applicant argues that the trial court did not consider the Notice to Show Cause and the reply and therefore the court did not realize that the respondent’s suit against him grossly violates the principle in Salomon vs Salomon (citation not given) in the sense that he engaged in the services of the respondents in his capacity as the director of Pavers International Limited and as such the respondent’s case ought to have been filed against the said company.

10. The applicant avers that the respondent does not stand to suffer any prejudice if the orders sought are not granted.

The Respondents’ Case 11. The respondents state that the replying affidavit dated 24th January 2023 in response to the Notice to Show Cause was drawn by the firm of Wangusi I.N. Advocates and filed without the proper leave of the court to do so since they were not properly on record for the applicant. Further, the applicant’s application dated 23rd January 2024 sought for the court’s leave to come on record on behalf of the applicant amongst other prayers, and the same had not been granted.

12. The respondents state that the applicant opted not to attend court on 26th January 2024 despite service of the hearing notice dated 11th December 2023. The respondents further state that the allegations that the applicant was unaware that the hearing of the said Notice to Show Cause would proceed in open court are false as the whatsapp message shared with the applicant during service is explicit as to how the hearing of the Notice to Show Cause would proceed and a screenshot of the same was produced as further proof of service upon the applicant. Thus, the failure to attend court on the said date was due to the applicant’s sheer ignorance and the same cannot be used as an excuse before this court.

13. The respondents aver that only their Notice to Show Cause was coming up for hearing on 26th January 2024 and not the applicant’s application dated 23rd January 2024. The respondents state that the said application was never brought to their attention until they were served at a later date.

14. The respondents argue that the applicant’s failure to prosecute his said application dated 23rd January 2023 was due to his ignorance and indolence considering the same had been filed under certificate of urgency.

15. The respondents further argue that the applicant was aware of the suit all along. On 18th August 2021, he was served with scanned copies of the plaint and summons to enter appearance through his mobile number 0721981962. On 23rd August 2021, the applicant was further served with hard copies of summons and other pleadings but declined to acknowledge service. He refused to sign the copies. However despite proper service, the applicant was less bothered to enter appearance or file his defence.

16. The respondents state that the first Notice to Show Cause application dated 21st July 2023 was served upon the applicant through his phone number 0721981962 upon which he swiftly instructed an advocate whose application and attempt to set aside the default judgment was dismissed for lack of merit.

17. The respondents state that the mobile number 0721981962 that was used to effect service of documents and notices throughout trial is registered under the names of David Mwirigi Mbae, the applicant and thus he has always been aware of everything shared through his number and his selective admission is an evasive tactic.

18. The respondents aver that upon their request for judgment, the trial court was satisfied that proper service had been conducted hence default judgment entered as prayed in the plaint. The respondents further state that it was upon lack of any attachable assets belonging to the applicant and the subsequent service of the Notice to Show Cause when the applicant woke from slumber and realized that the previous pleadings that he deliberately ignored are at the stage of execution.

19. The respondents state that the applicant’s intention is to delay the matter to their detriment automatically suspending their anticipated justice.

20. The respondents aver that the instant application is a waste of the court’s time and an impediment to their deserved justice as the grounds relied on by the applicant are baseless, invalid and completely unacceptable.

21. The applicant filed a Further Affidavit dated 19th February 2025 in which and he states that his replying affidavit in response to the Notice to Show Cause is dated 24th January 2024. However his application seeking to come on record is dated 23rd January 2024 which means that his advocates had already sought leave before they filed the replying affidavit. Furthermore, the applicant avers that the trial court slated the matter for directions on his said application on 26th January 2024 when they would have addressed the court on all issues including their coming on record. The applicant argues that the said orders of 24th January 2024 did not indicate that the matter would be mentioned in open court. The confusion on whether the matter was in open court or virtually is excusable and should not be used to bar or evict a party from the seat of justice unheard.

22. The applicant states that the court should disregard the evidence of screenshots produced by the respondents as annexed in their replying affidavit for failure to meet and adhere to Section 106B of the Evidence Act.

23. The applicant avers that he served the respondents with his application dated 23rd January 2024 as an email was sent to their advocates on 25th January 2025 at 5. 29pm. The applicant avers that he has never been heard or served with any pleadings of the court.

24. Directions were issued that the application be canvassed by way of written submissions and from the record only the applicant complied by filing his submissions on 19th February 2025. The respondents on the other hand had not filed their submissions by the time of writing this ruling.

The Applicant’s Submissions 25. The applicant relies on Order 42 Rule 6 of the Civil Procedure Rules and the cases of Amal Hauliers Limited vs Abdulnasi Abukar Hassan (2017) eKLR; Suleiman vs Amboseli Resort Limited (2004) 2 KLR 589 and Attorney General vs Halal Meat Produces Limited Civil Application No. 270 of 2008 (Nairobi) and submits that the power to grant stay of execution pending appeal is an exercise of discretion of the court on sufficient cause being shown by the applicant that substantial loss may result to the applicant if the orders are denied.

26. The applicant submits that the impugned ruling was delivered on 26th January 2024 and the instant application is dated 31st January 2024. Thus the application and memorandum of appeal were filed four days later and thus the application was filed without undue delay.

27. The applicant submits that the ruling and order was made prematurely and amidst confusion or breakdown of communication on the part of the counsel and the trial court. The applicant further submits that there was confusion as to whether counsel was to appear in open court or virtually.

28. The applicant submits that he filed his application dated 23rd January 2024 which was placed before the trial court on 24th January 2024. On the same day, the trial court directed that the application be served and it be mentioned on 26th January 2024 for directions. In that order, the applicant states that the trial court did not indicate that counsel should appear in court physically. On 25th January 2024 at 8. 30am the applicant submits that his counsel served the said application with the order to the respondent’s counsel via email. Later in the day at 5. 29pm, his counsel once again served his replying affidavit to the Notice to Show Cause upon the respondent’s counsel.

29. The applicant submits that the practice at Ruiru Law Courts is that court virtual links are usually sent privately via email to the parties’ respective advocates. The emails usually indicate even the time when a party is expected to appear before court. The links are usually sent either the eve to the court date or in the morning of the court date.

30. The applicant submits that on 25th January 2024, his counsel waited for the email from Ruiru Court sharing the court link but none was sighted. As a result, counsel woke up in the night at 1. 38am on 26th January 2024 to send an email to the court so that whoever got to court in the morning may respond to the said email on priority. On 26th January 2024, whereas counsel was busy following up to get the court response and link to the court, she finally sighted the email from Ruiru court at 9. 11am informing her that the matter was to be mentioned in open court. The applicant submits that his counsel hurriedly started her journey to Ruiru from Nairobi. Unfortunately by the time she arrived at Ruiru, the matter had already been dealt with.

31. The applicant argues that counsel for the respondent lied to the court that she had not been served with any response to the Notice to Show Cause yet his counsel served them via an email at 5. 29pm on 25th January 2024.

32. The applicant further argues that there was an excusable confusion between the court and his counsel as regards whether to appear online or virtually. The directions of the court of 24th January 2024 did not specify that appearance was to be in open court. Furthermore, counsel for the respondent lied to the court that they had not been served with a response to their Notice to Show Cause yet they had been served via email the previous day. Additionally, even though the respondent’s counsel had lied that no response had been served, the trial court fell into error by not checking its record or CTS whereupon it would have found his replying affidavit. The applicant argues that the court ought to have exercised its discretion judiciously by granting another mention/hearing date especially in view of his application which was coming up for directions.

33. The applicant argues that the trial court fell into error by issuing warrants of arrest despite the presence of the said application on record and the replying affidavit to the Notice to Show Cause, it is manifestly clear that the subordinate court had sanctioned his arrest in execution of a decree/judgment which he was seeking to set aside. The applicant submits that he has an arguable appeal with high chances of success.

34. The applicant submits that he shall suffer grave prejudice loss and harm which no amount of money can compensate as he shall be condemned unheard and should he be arrested and sent to civil jail, no amount of money can remedy the emotional and psychological torture he would have gone through. Further, the applicant submits that the appeal raises serious triable issues alongside the draft defence which shall be rendered nugatory and should he be compelled to pay the decretal amount before the case is heard, he has no information about the respondents’ ability to refund the said monies in the event the appeal succeeds. The applicant argues that he will have been evicted from the seat of justice unheard purely on the account of mistake of counsel and court which mistakes have been held to be excusable since mistakes by counsel should not be visited on an innocent litigant.

35. The applicant submits that by virtue of the order/ruling being appealed is not a money decree, he urges the court to compromise on the element of security and allow the parties to canvass the appeal.

36. The main issue for determination is whether the applicant has satisfied the conditions set out in Order 42 Rule 6 of the Civil Procedure Rules for stay of execution pending appeal.

The Law Whether the applicant has satisfied the conditions set out in Order 42 Rule 6 of the Civil Procedure Rules for stay of execution pending appeal. 37. It is trite law that an appeal does not operate as an automatic stay of execution. The conditions which a party must establish in order for the court to order stay of execution are provided for under Order 42 Rule 6(2) Civil Procedure Rules. Order 42 Rule 6 of the Civil Procedure Rules stipulates:-1. “No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but the court appealed from may for sufficient cause order stay of execution of such decree or order and whether the application for such stay shall have been granted or refused by the court appealed from the court to which such appeal is preferred shall be at liberty on application being made to consider such application and to make such order thereon as may to it seem just and any person aggrieved by an order of stay made by the court from whose decision the Appeal is preferred may apply to the appellate court to have such orders set aside.2. No order for stay of execution shall be made under sub rule 1 unless:-a.The Court is satisfied that substantial loss may result to the 1st Applicant unless the order is made and that the application has been made without unreasonable delay; andb.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.

38. Thus, under Order 42 Rule 6(2) of the Civil Procedure Rules, an applicant should satisfy the court that:1. Substantial loss may result to him/her unless the order is made;2. That the application has been made without unreasonable delay; and3. The applicant has given such security as the court orders for the due performance of such decree or order as may ultimately be binding on him.

39. Substantial loss was clearly explained in the case of James Wangalwa & Another vs Agnes Naliaka Cheseto [2012] eKLR:-“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 CPR. This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.

40. The applicant has not stated that he stands to suffer substantial loss in his supporting affidavit. He then states that his right to liberty is at stake as he is on the verge of being arrested and committed to civil jail pursuant to the orders issued on 26th January 2024. It is in his submissions that the applicant states that he stands to suffer substantial loss as he will be condemned unheard and that should he be condemned to pay the decretal amount before the case is heard. It is further stated that the applicant does not know the respondents’ financial capabilities and whether they will be in a position to refund the said monies in the event the appeal succeeds.

41. On perusal of the record, it is noted that judgment was entered against the applicant in Ruiru SPMCC No. E335 of 2021 on 28th September 2021 after the trial court satisfied itself that the applicant was duly served with the pleadings but did not enter appearance. The respondents then filed Notice to Show Cause on 23rd June 2023 and the same was scheduled for hearing in open court for 21st July 2023.

42. On 21st July 2023, the trial court gave more time for the applicant’s advocates, Shisanya & Company Advocates, to regularize their pleadings as they had filed the notice of appointment the previous day. The counsel was also given time to respond to the notice to show cause. The applicant’s advocates thereafter filed an application dated 20/7/2023 seeking for the orders of stay of execution or setting aside the judgment delivered on 28th September 2021. The trial court on 15/8/2023 directed that the respondents’ file their response to the application by 29/8/2023 and the applicant file his submissions on 12/9/2023 and thereafter the respondents file their submissions on 27/9/2023. The matter was fixed for ruling on 5/10/2023. On the said date, the applicant’s advocate sought more time to file submissions but the court declined to grant more time and rendered it’s ruling, thus dismissing the application dated 20/7/2023.

43. The respondents filed a Notice to Show Cause application dated 30/11/2023 and when it came up before the court, it was directed that the application be served and an affidavit of service be filed. The notice to show cause hearing was fixed for 26th January 2024. The applicant then filed an application under certificate of urgency on 24th January 2024 seeking for leave for the firm of Wangusi I. N. Advocates to come on record and for stay of execution of the orders made on 5th October 2023 as well as the judgment delivered on 28th September 2021. The matter came before the trial court on 26th January 2024 and there was no appearance by the applicant despite being served and an affidavit of service dated 20th December 2023 being filed. The affidavit of service indicates that the process server called the applicant on his mobile phone number 0721981962 and informed his intention to serve him with the court process. The applicant directed that he be served though his mobile phone number on whatsapp 0721981962. The documents were duly received by the applicant. The double-tick on the process-server’s phone confirmed that the message had ben read. Thus, it is evident that the applicant was aware of the hearing of the notice to show cause on 13th December 2023 but he failed to attend court. Although the applicant denies service he did not deny that his mobile phone number was 0721981962 which was used for service. The court below was satisfied that service was effected and that no response was filed to the Notice to Show Cause. As a result warrants of arrest were issued against the applicant. The court further noted that counsel for the applicant was not present for taking directions in regard to the application dated 23/1/2024.

44. I have noted that the applicant states that the response to the Notice to Show Cause vide a replying affidavit dated 24th January 2024 was uploaded in the system on 25th January 2024. As such, pm the date the applicant’s counsel further sent an email to the respondents’ advocates with the said replying affidavit on 25th January 2024 at 5. 29pm explains why the respondents’ advocates were not aware of any response. Neither was the court aware that a reply had been filed. It is clear that the applicant knew of the date of hearing of the notice to show cause from 13th December 2023.

45. The reasons for not attending court on the material day by the applicant and his counsel are not convincing. Had the applicants attended court, they would have explained to the court that they had filed a response to the NTSC late. That way the court would have confirmed from the CTS and retreated to write its ruling in consideration of the replying affidavit. In my view, the applicant is to blame for his failure to act in regard to the Notice to Show Cause. What then, did the applicant expect the court to do except to grant the orders sought in the NTSC. Having considered the submissions of the applicant and his replying affidavit to this application, I am not convinced that substantial loss has been demonstrated.

Has the application has been made without unreasonable delay 46. The ruling and orders were issued on 26th January 2024 and the applicant filed the instant application on 31st January 2024. Thus the application has been filed timeously.

Security of costs 47. The purpose of security was explained in the case of Arun C. Sharma vs Ashana Raikundalia t/a Raikundalia & 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 the 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.

48. Evidently, the issue of security is discretionary and it is upon the court to determine it and set the terms or conditions. The applicant has not offered any form of security for the due performance of the decree herein.

49. It is trite that the right of appeal must be balanced against an equally weighty rigid right of the plaintiff to enjoy the fruits of the judgment delivered in his favour. In the case of Samvir Trustee Limited vs Guardian Bank Limited [2007] eKLR the court stated:-“The Court in considering whether to grant or refuse an application for stay is empowered to see whether there exist any special circumstances which can sway the discretion of the court in a particular manner. But the yardstick is for the court to balance or weigh the scales of justice by ensuring that an appeal is not rendered nugatory while at the same time ensuring that a successful party is not impeded from the enjoyment of the fruits of his judgment. It is a fundamental factor to bear in mind that a successful party is prima facie entitled to fruits of his judgment; hence the consequence of a judgment is that it has defined the rights of a party with definitive conclusion.”

50. The court in granting stay has to carry out a balancing act between the rights of the two parties. The question then begs as to whether there is just cause for depriving the respondent its right of enjoying its judgment. The record shows that despite the applicant being served with the pleadings and notices in the trial court, he did not enter appearance or defend his claim. The applicant only took action after the respondents began the execution process and served him with the notice to show cause why he should not be committed to civil jail. It is therefore unjustifiable and unfair for the applicant to claim he has been condemned unheard when all along he was served with the pleadings. Further, it is not in the interest of justice to deprive the respondents of the fruits of their judgment which was entered on 28th September 2021.

51. I have further perused the grounds of appeal and without going into the merits of the appeal noted that no arguable points of law have ben raised.

52. It is my considered view that the applicant has not met the threshold of granting stay of execution pending appeal.

53. Accordingly, it is my considered view that the application dated 31st January 2024 lacks merit and is hereby dismissed with costs.

54. It is hereby so ordered.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 27TH DAY OF MARCH 2025. F. MUCHEMIJUDGE