Mohammed Azim Manji v Perpetual Katumbi Nzioki (Suing as the Mother and Personal Representative of the Estate of Ofryan Maina Migosi (Deceased) [2017] KEHC 6587 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CIVIL APPEAL NO 173OF 2015

MOHAMMED AZIM MANJI............................................................APPELLANT

VERSUS

PERPETUAL KATUMBI NZIOKI (Suing as

the Mother and PersonalRepresentative

of the Estate ofOFRYAN MAINA MIGOSI (DECEASED).......RESPONDENT

RULING

Introduction

The Appellant herein filed an application in Machakos Civil Misc. Application No 177 of 2014, seeking a stay of execution of the decree in PMCC Kithimani No 26 of 2013, and that he be granted leave to appeal out of time. The said orders were granted by this Court (Jaden J.) in a ruling delivered on 5th June 2015, on condition that the Appellant deposits the decretal sum in a joint interest earning account of both counsel for the parties or in court within 3o days of the date of the ruling, and in default execution to issue.

On 11th November 2015, the Appellant then filed this Appeal by way of a Memorandum of Appeal dated 9th November 2015, and subsequently on 17th February 2016 filed an application herein by way of a Notice of Motion dated 16th February 2016 seeking a stay of execution of the decree in PMCC Kithimani No 26 of 2013; admission of the memorandum of appeal filed out of time and the same be deemed as duly filed; and that the decretal sum be deposited in joint interest earning account of both counsel for the parties as directed in the ruling dated 5th June 2015. The Appellant attached a copy of the said ruling dated 5th June 2015 given in in Machakos Civil Misc. Application No 177 of 2014.

Hon. Justice Muriithi, in a ruling delivered on 30th March 2016, found that the application was an abuse of the process of court, to the extent that its effect was to obtain a fresh order of stay of execution after the Respondent had levied execution, and after the terms of stay that had been granted by the previous Court had been disobeyed by the Appellant. Further, that it had not been demonstrated that there were good grounds for review of the said orders of the previous Court, or for extension of time for compliance with the orders. The learned Judge therefore declined to grant any stay of execution in the manner sought in the application.

The Application

The Appellant has now filed another application  by way of a Notice of Motion dated 12th April 2016, seeking orders that he be given leave to pay the decretal sum in Court, or that in the alternative the Respondent does give adequate and acceptable security for the decretal sum pending the hearing and determination of the appeal. It was explained in the said application and in a supporting affidavit sworn on 12th April 2016 by Agnes Wangari Gichohi, the Appellant’s Advocate, that the APA Insurance Company issued a cheque dated 23rd February 2016 for Kshs 892, 415/= being the decretal sum in the joint names of both Advocates , but that the Respondent’s Advocates have declined to open the account in joint names. Further, that the amount involved is high and the Respondent may not be financially able to refund it if the appeal succeeds.

The Appellant offered to give an acceptable guarantee by a reputable bank as security or to pay the decretal sum to Court, and stated that it stands to suffer substantial loss as its good will be sold by public auction if the decree is executed.

Needless to state, the application was opposed by the Respondent who filed Grounds of Opposition dated 20th June 2016 as follows:

1. THAT the application is frivolous,  vexatious  an afterthought  and an abuse  of the court process.

2. THAT this application is Res Judicata.

3. THAT the issues raised in this application were raised in the Applicant's previous application dated 16th February 2016 and the court delivered/gave  its ruling on 30th March 2016 and categorically declined to grant the Applicant the orders being sought in the current application.

4. THAT the application is bad in law, Incompetent and misconceived.

5. THAT the Applicant herein never appealed against the ruling of the court delivered on 30th March 2016 but decided to come with this application yet the orders being sought are the same/similar to the ones being sought in this current application.

6. THAT the Appellant/Applicant has not given good reasons as to why the application should be allowed.

7. THAT the application is improperly before this court.

8. THAT the purported appeal has limited chance of success.

The Determination

The issue herein is whether the current application is res judicata, and if not, whether the orders sought should be granted. The Appellant’s Advocate, Wangari Muchemi & Company Advocates, urged in submissions dated 20th January 2017  that the orders sought in the present application have never been sought anywhere in the proceedings herein,  and the application is therefore not res judicata.  Further, that the Court has powers to grant the orders sought pursuant to Order 22 Rule 1(a) of the Civil Procedure Rules.

Mutunga & Company Advocates for the Respondent reiterated that the application is res judicata as a similiar application dated 16th February 2016 was dismissed, on the ground that the Appellant had disobeyed the orders given in a ruling delivered on 5th June 2015 in yet another previous similar application.

This Court in this regard is guided by sections 6 and  7 of the Civil Procedure Act which prohibit a court from hearing a matter that is sub judice or res judiciata as follows:

“No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed…..

No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.;”

I have perused the two previous applications by the Appellant. I note that the Appellant was the Applicant in Machakos Civil Misc. Application No 177 of 2014, while the Respondent herein was also the Respondent in the said application. The subject matter of the application was stay of execution, which the Court ordered on condition that the Appellant deposits the decretal sum in a joint interest earning account of both counsel for the parties or in court within 30 days of the date of the ruling . The order sought in the current application of depositing the decretal sum in Court was  therefore accordingly addressed and given by this Court in Machakos Civil Misc. Application No 177 of 2014, in the ruling delivered therein  by Jaden J. on 5th June 2015.

In addition, in the ruling on the Notice of Motion dated 16th February 2016 that was filed herein by the Appellant,  Muriithi J. refused to grant the orders sought of stay of execution on condition that the  decretal sum be deposited in a joint interest earning account of both counsel for the parties. Therefore, the issue of security to be provided  by the Appellant has been substantially in issue and determined in the two applications and is res judicata. Furthermore, the Appellant has not shown any grounds to review the orders given in the previous applications.

Lastly, it is also the legal  position thatwhere an applicant has failed to comply with the terms of an order for stay granted by the trial court, the repeat of the application for stay in the appellate court is an abuse of the process of the court.  In Hunker Trading Company Limited v. Elf Oil Kenya Limited [2010] eKLR, the Court of Appeal held that to file an application in the appellate court for stay of execution, after having failed to comply with the terms of an order of stay granted upon a similar application before the trial court, is an abuse of the process of the court.  This reasoning equally applys to non-compliance with conditions given by a Court in its previous orders.

The Notice of Motion dated 12th April 2016 is therefore not only res judicata but also in abuse of the process of Court, and the said Notice of Motion is accordingly dismissed with costs to the Respondent.

Orders accordingly.

Dated, signed and delivered in open court at Machakos this 20th day of March 2017.

P. NYAMWEYA

JUDGE