Omar v Mag [2022] KEHC 13571 (KLR)

Omar v Mag (Civil Appeal E707 of 2021) [2022] KEHC 13571 (KLR) (Civ) (20 September 2022) (Ruling)

Neutral citation: [2022] KEHC 13571 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E707 of 2021

JN Mulwa, J

September 20, 2022

Between

Salim Omar

Appellant

and

Brigitte Philip Mag

Respondent

Ruling

1. This ruling is in respect to two applications:The first application is a notice of motion dated March 28, 2022 brought by the appellant Salim Omar, under order 22 rule 22, order 10 rules 10 and 11 and order 51 of theCivil Procedure Rulesas well as sections 1A, 1B and section 3A of the Civil Procedure Act. He seeks the following orders:1. Spent.

2. Spent.

3. That this honourable court be pleased to order stay of execution of the orders issued on September 29, 2021 by the Hon LT Lewa and orders issued on March 2, 2022 by the Hon A Makau in Milimani CMCC No E9336 of 2021 – Brigitte Philip Mag v Salim Omar and all consequential orders pending the hearing and determination of this appeal.

4. That this honourable court be pleased to order stay of proceedings in Milimani CMCC No E9336 of 2021 – Brigitte Philip Mag v Salim Omar pending the hearing and determination of this appeal.

5. That the costs of this application be provided for.

2. The application is supported by the appellant’s affidavit in which he avers that the respondent gifted him a nissan pickup double cabin registration number KCR xxxx upon asking him to quit his job when they were in a love relationship. When the relationship ended in early 2020, the respondent filed Milimani CMCC No E9336 of 2021 in the lower court seeking to recover the motor vehicle. By a ruling delivered by Hon LT Lewa on September 29, 2021 in respect of an interlocutory application filed alongside the plaint in the lower court, the appellant was ordered to release the said motor vehicle to the respondent unconditionally pending the hearing and determination of the suit. The appellant was aggrieved that the said order has the effect of determining the suit before parties have been heard yet the motor vehicle is the substratum of the suit and the appeal.

3. The appellant avers that he is the registered owner of the motor vehicle and has been in exclusive possession and use of the same since it was purchased in the year 2018; that he is apprehensive that if the stay order sought is not granted, the respondent who is a foreign national will proceed to execute the lower court's order of September 29, 2021 which will be greatly prejudicial to his interest as the motor vehicle is his only source of livelihood. He further avers that in any event, the respondent has already placed a caveat against the log book of the subject motor vehicle and therefore there is no risk of him selling or transferring the subject motor vehicle to a third party.

4. In opposition, the respondent filed a replying affidavit in which she admitted that she was in a romantic relationship with the appellant since April 2018 but denied asking him to quit his job or gifting him the subject motor vehicle. She averred that she personally purchased the subject motor vehicle on September 7, 2018 for a consideration of Kshs 4,036,645. 60/- to ease her movement whenever she was in the country. She states that she transferred the purchase price amount from her bank account directly to Crown Motors Group Limited and is still servicing the loan she procured for the said purpose. She accused the appellant of attempting to defraud her by having the motor vehicle registered in his name and disappearing with the vehicle after their relationship ended, hence necessitating the filing of Milimani CMCC No E9336 of 2021 in the lower court.

5. In the premises, the respondent beseeched the court to decline the orders sought as the appellant has repeatedly disobeyed various court orders issued in the past regarding the motor vehicle. She contended that the appellant blatantly defied the court orders of September 29, 2021 and went into hiding. As a result, she filed an application for contempt of court in the lower court which application was determined on March 2, 2022 and the appellant was ordered to comply with the orders of September 29, 2021 within 4 days. However, the appellant disobeyed the latter order as well, and it took the assistance of the police who traced the vehicle on April 12, 2012 while in possession of a third party at Eastleigh area and detained it at Pangani Police station.

6. Only the appellant had filed his submissions on this application as at the time of writing this ruling, despite having been directed to file the submissions by the court.

7. The second application is filed by the respondent. It is dated April 15, 2022 and brought under the Judicature Act Cap 8; the High Court (Practice and Procedure) Rules, part 1 rule 3, and section 1A, 1B, 3A & 63(e) of the Civil Procedure Act. The respondent seeks a total of nine orders, most already spent. Remaining for consideration and determination is an order seeking that the appellant’s application dated March 28, 2022 be struck out with costs and the appellant be ordered to bear costs of the respondent’s application.

8. The application is supported by the supporting and further affidavits sworn by the respondent in which she largely reiterated the averments in her replying affidavit filed in opposition to the appellant’s application dated March 28, 2022. The respondent took issue with the fact that the appellant’s application dated March 28, 2022 was filed on April 14, 2022 during the April High Court recess and/or vacation without seeking and obtaining prior leave of court.

9. In opposition, the appellant filed a replying affidavit in which he also reiterated the averments made earlier in support of his application dated March 28, 2022 to a large extent. The respondent /applicant had not filed her submissions by the time of preparing this ruling despite having been directed to file the submissions by the court, in the advocates presence. However, the appellant has filed its submissions as directed.

10. The submissions are largely a reiteration of the averments made in support of his earlier application. He urged the court not to dismiss his application for stay on the basis of failure to seek prior leave of court to bring the application during the High Court vacation, but to consider it pursuant to the provisions of article 159 of theConstitution and section 3 and 3A of the Civil Procedure Act.

11. The following are the issues that arise for determination from the two applications before the court:1. Whether the appellant’s application dated March 28, 2022 should be struck out.

2. Whether the court should grant a stay of execution of the orders issued on September 29, 2021 and March 2, 2022 in Milimani CMCC No E9336 of 2021 pending the hearing and determination of this appeal.

3. Whether the court should grant a stay of the proceedings in Milimani CMCC No E9336 of 2021 pending the hearing and determination of this appeal. Whether the appellant’s application dated March 28, 2022 should be struck out. 12. In my understanding, the respondent seems to be aggrieved by the fact that the appellant filed his application during the courts vacation period without seeking prior leave for admission of the same.Rule 3(1) of the High Court (Practice and Procedure Rules) under the Judicature Act provides that:-'Any party to any case or matter may at any time apply by summons for the trial or hearing of such a cause or matter during a vacation, and the judge being satisfied that there is urgent need for such a trial or hearing may make an order for the trial or hearing of such case or matter during the vacation and may fix a date.'

13. In this case, the appellant’s application dated March 28, 2022 was filed on April 14, 2022 under certificate of urgency. Apart from the duty judge, Hon Sergon J granting interim orders upon considering the certificate of urgency as is routinely done in all deserving applications filed as such, the application was not admitted for hearing until long after the vacation had lapsed. For that reason, the appellant cannot be faulted for failing to make a separate application by summons for admission of his application. Consequently, the court finds the respondent’s application dated April 15, 2022 to be lacking in merit and accordingly it is dismissed.

Whether the court should grant a stay of execution of the orders issued on September 29, 2021 and March 2, 2022 in Milimani CMCC No E9336 of 2021 pending the hearing and determination of this appeal. 14. An order of stay of execution of a decree pending appeal is an exercise of court’s discretion which discretion must be exercised judiciously. SeeButt v Rent Restriction Tribunal [1979] eKLR.It is noteworthy that at this stage, the court is not overly concerned with the merits or otherwise of the appeal. An applicant is only required to satisfy the conditions set out at order 42 rule 6 (1) and (2) of the Civil Procedure Rules which stipulates:'6. (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 order 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 applicant 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 applicant.'From the above provisions, it is clear that in order to succeed in an application for stay of execution pending appeal, an applicant must demonstrate that substantial loss may result unless the order of stay is issued; that the application has been brought without undue delay; and must give security for the due performance of any decree or order that may ultimately be found to be binding on the applicant.

15. In the circumstances of this case, I have no doubt that the present application was made without unreasonable delay. The latter order that the appellant seeks to stay were issued on March 2, 2022 and the instant application was filed on April 14, 2022, just a month and twelve days later.

16. As regards the second limb, it is well settled that an applicant must demonstrate the substantial loss it stands to suffer if execution is not stayed. He must show that the execution will create a state of affairs that will irreparably affect him as a successful party in the appeal. In Kenya Shell Limited v Benjamin Karuga Kibiru & anorther [1986] eKLR, Platt JA stated thus:'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 corner stone of both jurisdictions for granting a stay. That is what has to be prevented. Therefore without this evidence it is difficult to see why the Respondents should be kept out of their money.'

17. The appellant submitted that if the subject vehicle is released to the respondent who is a foreign national and the same is disposed of or damaged, and the respondent returns to her country of origin, he will not only lose his only source of livelihood but may also be unable to recover any damages from her in the event that his appeal herein succeeds.

18. In my view however, the appellant has not demonstrated the substantial loss he would suffer if the motor vehicle is released to the respondent. Firstly, the value of the subject motor vehicle is quantifiable, by looking at the purchase price, which the appellant has not disputed at all in any of his affidavits. The appellant would be able to recover its monetary value in the event that he succeeds on the appeal, and the vehicle is beyond his reach. Secondly, the mere fact that the Respondent is a foreign national cannot be an impediment to the appellant’s recovery of the motor vehicle or damages for its repair should his appeal succeed. Indeed, the appellant himself has asserted in one of his affidavits that he and the respondent own a home valued at Kshs 31 Million in Langata, Nairobi. This means that the respondent despite being a foreign national has an asset within this court’s jurisdiction and is therefore perfectly able to satisfy any decree that may be issued against her in respect to the motor vehicle.

19. As regards the requirement for security, the appellant seems to be speaking from both sides of his mouth. On the one hand, he asserts that he is willing to offer any security or comply with any conditions that the court may require for the grant of the orders sought. On the other hand, he contends that the respondent has sufficient security since she still resides in and has exclusive possession of their home in Langata, in addition to the caveat placed on the log book of the subject motor vehicle. Other than stating that the parties jointly own a residential house at Langata, Nairobi, he has not proved the allegation by providing the house title documents or any other evidence of joint ownership, and its current legal status.

20. This court has a duty to balance the appellant’s right to pursue his appeal against the equal right of the respondent as the beneficiary of a favourable order which has not been set aside and this can only be possible if he offers security. It is evident from the appellant’s averments and submissions that he wants a stay of execution pending hearing and determination of his appeal without offering any security for the performance of the decree. He however avers that he is ready to abide with conditions that the court may state.

21. While considering whether or not to grant an order of stay, the court must consider each of the parties’ interests, and the prejudice that may be caused to either if the order is granted. It is a balancing act. I am minded that the impugned court orders dated September 29, 2021 are interlocutory, but final in nature, as they tend to determine the finality of the case which is pending hearing before the trial courtIn the premises, I shall allow the appellant’s application dated September 29, 2021, but upon terms set out here below, at paragraph 27.

Whether there should be a stay of proceedings in the lower court pending the hearing and determination of the appeal. 22. The powers to stay proceedings pending appeal is derived from both order 42 rule 6 of the Civil Procedure Rules as well the inherent jurisdiction reserved under section 3A of the Civil Procedure Act. Notably however, the test for stay of proceedings is very high and stringent. Halsbury's Law of England, 4thEdition. Vol 37 page 330 and 332, states that:'The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court's general practice is that a stay of proceedings should not be imposed unless the proceeding beyond all reasonable doubt ought not to be allowed to continue.'

23. In the case of Global Tours &Travels Limited; Nairobi HC Winding Up Cause No 43 of 2000 Ringera J stated thus;'As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice, the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously' [emphasis mine]

24. Further, in The Standard Ltd & Others v Wilson Kalya & Another t/a Kalya & Company Advocates - Civil Application No Nai 369 of 2001 (196/2001 UR), the Court of Appeal set down the principles which can be used to guide courts in the exercise of the power to stay proceedings pending appeal as follows:'(a)The appellant must show that his appeal is an arguable one. In other words, he must show that the appeal is not a frivolous one.(b)The appellant must also show, in addition, that if the order for stay of proceedings is not granted, his appeal, if it were to succeed, would be rendered nugatory.'

25. From a perusal of the grounds raised in the appellant’s memorandum of appeal filed herein, there is no doubt that the appellant has an arguable appeal. However, having made a finding that the appellant does not stand to suffer substantial loss if an order of stay is denied, it follows that his appeal would not be rendered nugatory should it be eventually successful. In the premises, and considering all the circumstances of this case, it would not be in the interest of justice to grant stay of the proceedings in the lower court as it will only serve the purpose of delaying the further hearing and determination of the suit, which is against the overriding objective as captured under section 1A, 1B and section 3A of the Civil Procedure Act.

26. In view of the foregoing, I am satisfied that the appellant is not deserving of the exercise of this court’s discretion in his favour, in this regard to the prayer under consideration.

Conclusion 27. For the above reasons, the court finds that : 1. The respondent’s application by chamber summons dated April 15, 2022 lacks merit and is hereby dismissed.

2. The appellant’s application dated March 28, 2022 succeeds partially, upon terms that;a) The appellant shall deposit the sum of Kshs 4,036,645. 60 in to court within 21 days as a condition for stay of execution pending hearing and determination of the appeal.b) In default, the stay orders shall automatically lapse, and the respondent shall be at liberty to execute the trial court orders dated September 29, 2021. c) This court directs that the trial court’s case, Milimani CMCC No E 9336 of 2021 be listed down for further hearing on priority basis.d) The appellant is further directed to file the record of appeal within 60 days of this ruling.e) Each party shall bear own costs of their respective applications.

DELIVERED, DATED AND SIGNED AT NAIROBI THIS 20TH SEPTEMBER, 2022. JN MULWAJUDGE.