1. I have considered the grounds on the face of the application dated 1st October 2024, 7th November 2024, and 9th December, 2024 together with the supporting affidavit sworn on even date and the replying affidavit in opposition to the same sworn on 10th February, 2025 together with the rival submissions made by the parties and applicable law.
2. The Applicant seeks to review the ex parte orders made under certificate of urgency by this court on 1st October, 2024 arising out of the motion dated 1st October, 2024 which order provided for the deposit of security in the amount of 75% of the decretal sum awarded by the Tax Appeal Tribunal in Appeal No. 18 of 2023 to be deposited in court within 45 days as a condition for stay pending the hearing and determination of the application. That application was pending before the court at the time the two applications for review were filed and the same had not yet been undetermined.
3. In response to the above said issued orders, the Appellant went on to file two further applications, namely dated 7th November, 2024 and 9th December, 2024 seeking to review the said orders of this court in relation to the amount ordered as a condition for security.
4. The multiplicity of applications filed in response to the order relating to conditions of stay are an abuse of the court process, and I do not think that a review may be entertained in respect of an application that was pending and matters that are still under judicial consideration.
5. Moreover, this court frowns upon the filing of a multiplicity of applications on the same issue, which had not been determined, and remained pending at the time. The proper approach would have been to allow the court to deal definitively with the original application for stay, and then, for the Applicant to appeal if it was unsatisfied with the conditions imposed by the court, rather than filing two further applications for review of a decision that was not final, and in respect of an application that was still under consideration.
6. The provisions of Order 45 Rule 1 provides for the review of a decree or order as follows:-
(1) Any person considering himself aggrieved: -
a) By a decree or order from which an appeal is allowed but from which no appeal has been preferred or
b) By a decree or order from which no appeal is hereby allowed, and from whom the discovery of new and important matter or evidence which after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of the judgment to the court which passed the decree or made the order without unreasonable delay.
7. There are three limbs which are discernible from part (b) above
a) Discovery of new and important matter or evidence.
b) Mistake or error apparent on the face of the record.
c) Any other sufficient reason.
8. From the above provisions it is clear that while Section 80 of the Civil Procedure Act gives the court the power to make orders for review, Order 45 sets out the conditions to be met in a review.
9. In the present situation, the orders issued by this court were interlocutory, and pending the hearing and determination of the relevant application. The right to appeal had not arisen, and the application for review was therefore premature. Moreover, none of the other conditions as set out above apply. I do not think that a disagreeable Applicant may, by force multiplicity of applications, insist on the amount of security that it desires to deposit as a condition for the stay it seeks, and simply file endless applications suggesting different amounts in each of the same.
10. Accordingly, for the reasons stated above, the applications seeking review dated 7th November, 2024 and 9th December, 2024 are dismissed with costs.
11. I turn to the application dated 1st October, 2024.
12. The law in this regard is clear.
Order 42 Rule 6 is succinct:
“(2)” No order for stay of execution shall be made under sub rule (1) unless –
(a) the court is satisfied that substantial loss shall result to the Applicantunless 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 upon him has been given by the applicant.”
13. In the present mater, the Applicant admitted that it cannot afford to pay even 50% of the decretal sum as security. Accordingly, the court cannot help but wonder how it will be able to satisfy the judgment against it. The purpose of security under order 42 rule 6 is to secure the respondent, who has been successful, not to aid an appellant, on the basis that is cannot pay the decretal sum or satisfy judgment. Moreover, the above rule is clear, sufficient security as may be ultimately binding, is a mandatory condition for stay. In this case the court ordered that 75% of the decretal sum be paid pending the hearing and determination of the application. The same was not complied with.
14. Further, the affidavit is sworn by the appellant has not shown the loss that it will suffer if the stay is not granted.
15. This is not acceptable. As my Learned Brother Ringera, J. (as he then was) said on the same issue said:
“Substantial loss said to be likely to result from a refusal of a stay must be demonstrated as a matter of fact; and not by a mere flat statement in an affidavit or at the Bar”
16. The upshot of the foregoing is that the applications dated 1st October, 2024, 7th November, 2024 and 9th December, 2024 are all dismissed with costs to the respondent.