bubblic logistic east africa limited VS JUSTUS MUTINDA KALUNGU (suing as the legal rep of estate of ALBANUS MULINGE MUTINDA AND PETER KYUMA AND 1 Others

RULING

1. There are three applications for determination. The applications dated 10/04/2023 and 24/04/2023 were filed by the appellant and the one dated 19/04/2023 was filed by the 1st respondent.
2. The 1st respondent JUSTUS MUTINDA KALUNGU was the plaintiff Suing as the Legal Representative of the Estate of ALBANUS MULINGE MUTINDA in the trial court (Kilungu PMCC No. 149 of 2018) and his claim was for compensation of his son’s death which resulted from a road traffic accident. The 2nd PETER KYUMA and 3rd MICHAEL OKOTH respondents were sued as the driver and registered owner respectively of the accident motor vehicle while the appellant was a third party. Through a judgment delivered on 30/08/2022, the trial magistrate found the 2nd and 3rd respondents and the third party BUBBLE LOGISTICS EAST AFRICA LTD jointly and severally 100% liable for the accident. He awarded the 1st respondent kshs 1,927,401.60/= together with costs and interest. He also granted 21 days stay of execution.

3. Through an application dated 06/10/2022, the appellant moved the trial court for orders of stay of execution pending the hearing and determination of the appeal herein. The trial court ruled that; ‘Stay of execution is hereby granted on condition that the 3rd party deposits half of the decretal amount in an interest earning account in the joint names of the advocates for the 3rd party/applicant and the plaintiff/respondent within forty-five (45) days from the date of this ruling.’

4. Through an application dated 05/12/2022, the 3rd party appellant moved this court seeking a stay of execution but withdrew the same on 16/02/2023 when it was scheduled for hearing. All the interim orders granted were vacated.

5. On 07/03/2023, the matter was mentioned in the trial court and the 1st respondent was given the liberty to proceed with execution since the appellant had not complied with the condition given. The record shows that the appellant’s advocate was present in court when leave to execute was granted.
The Applications
6. In the application dated 10/04/2023, the appellant is seeking to stay the execution of the judgment/decree delivered on 30/08/2022 by Hon. Felix Makoyo in Makueni Chief Magistrate Court Civil Case No. 149 of 2018. The reference to Makueni Chief Magistrate Court is obviously an error as the matter was conducted in Kilungu PM’s court.

7. The application was supported by the grounds on its face and the affidavit of Mathias Mutua, the appellant’s director, sworn on the same date. He deposed that the 1st respondent had commenced the process of execution by attaching motor vehicle KCG 788U-prime mover and trailer and that the action would render the appeal nugatory. That the action would also prejudice the appellant’s right to appeal against the judgment. The warrants of attachment were exhibited. He deposed that the 1st respondent is a man of straw and the appellant would not recover anything if the appeal is successful. Further, he deposed that the appeal is very strong since the trial court found the appellant liable yet it is not the registered owner of the accident motor vehicle.

8. In response to the application, the 1st respondent filed the application dated 19/04/2023 seeking the following orders;

a) Spent.


b) That this honorable court be pleased to set aside and vacate the ex-parte interim orders of stay of execution dated 18/04/2023 of the decree/judgment delivered on 30/08/2022 by Hon. Felix Makoyo, Principal Magistrate in Kilungu Civil Case No. 149 of 2018.

c) That the respondent is in contempt of Orders dated 30/11/2022 by Hon. Makoyo in Kilungu Civil Case No. 149 of 2018.

d) That application dated 10/04/2023 filed by the respondent be dismissed for being an abuse of court process and Res Judicata with costs.

9. The application was supported by the grounds on its face and the 1st respondent’s supporting affidavit sworn on the same day. The gist of the application is that the appellant is in contempt of the stay orders granted by the trial and therefore lacks audience before this court. He deposed that the application dated 10/04/2023 is res judicata as it was dealt with by the trial court. He exhibited the ex-parte order issued by this court, the orders of Hon. Makoyo, affidavit of service and trial court order granting leave to execute.

10. He deposed that the appellant’s actions are an abuse of the court process meant to defeat justice and to deny the decree holder realization of his judgment. That if a full disclosure had been made before this court, the interim orders of stay would not have been granted. That the appellant approached this court with unclean hands and ulterior motives. Further, he deposed that this court has concurrent jurisdiction with the lower court in matters of stay of execution.

11. The appellant responded to the application dated 19/04/2023 through the replying affidavit of Mathias Mutua sworn on18/05/2023. He deposed that an advocate cannot swear an affidavit on behalf of his client on contentious issues and as such, the affidavit sworn by Amutallah Robert should be struck out.

12. He deposed that even though a conditional order was made by the subordinate court, the high court is not bound by them as its jurisdiction is wide and unfettered. He deposed that the appellant is ready and willing to deposit the entire decretal sum in court as security for the appeal.

13. He deposed that the public auction was scheduled to take place on 19/04/2023 and not 17/04/2023 and that the auctioneer was duly served on 18/04/2023. He deposed that any alleged sale of the vehicle amounts to contempt of the orders issued by this court. That in the 1st respondent’s application dated 19/04/2023, there was absolutely no mention of the alleged sale of 17/04/2023 and that it is simply an attempt to defeat the ends of justice.

14. In the application dated 24/04/2023, the appellant is seeking the release of motor vehicle KCG 788U (Prime Mover) and Trailer ZE 707S from M/S Chris Allan T/A Status Auctioneers. The application is supported by the grounds on its face and the supporting affidavit of Mathias Mutua, the appellant’s director, sworn on the same date.  He deposed that the auctioneers proclaimed the said motor vehicle and advertised it for sale through public auction on 19/04/2023. That the appellant is apprehensive that the auctioneers might sell, lease, transfer or in any other manner interfere with the rights to the vehicle.

15. He deposed that since there are orders of stay from this court, it is necessary that a consequential order be issue for release of the motor vehicle to the appellant. That the 1st respondent will not be prejudiced if the vehicle is released because the appellant is ready to deposit security for the due performance of the decree. The appellant has exhibited the interim order of stay from this court as MM-1. The newspaper advert for sale through public auction is exhibited as MM-2 and an affidavit of service of the court order as MM-3.

16. The 1st respondent responded to the application though his replying affidavit sworn on 15/05/2023. He deposed that he who comes to equity must come with clean hands. That the appellant was given a conditional order of stay by the trial court which he did not comply with or appeal against. That even the orders granting leave to execute were not appealed and have never been set aside.

17. He deposed that the application has been overtaken by events as the motor vehicle was sold by public auction on 17/04/2023. The advertisement & certificate of sale are exhibited. That the applicant failed to disclose that it had been given conditional orders by the trial court on 30/11/2022 and a copy thereof is exhibited. Further, he deposed that the trial court gave him leave to execute in the presence of the appellant’s advocate and has exhibited the court order.

18. He deposed that the appellant is not a deserving party for orders of this court as it has employed all the legal means at its disposal to ensure that he (respondent) never enjoys the fruits of his judgment despite losing a son in the road traffic accident.

19. The applications were canvassed through written submissions.

The Appellant’s Submissions

20. With regard to its application for stay, the appellant submitted that it will suffer substantial loss as the 1st respondent is a man of straw who is incapable of repaying the decretal sum if the appeal succeeds. That the 1st respondent did not controvert that fact in his replying affidavit. The appellant relied on Directline Assurance Company Ltd –vs- Michael Njima Muchiri & Anor (2020) eKLR where the court stated that;

“While it is true that every person is entitled to enjoy the fruits of his or her lawful judgment, it is trite law that upon an applicant raising issue with the financial capabilities of a respondent to refund a decretal sum, the evidential burden then shifts to the respondent to show the means/resources he or she has.”

21. He submitted that the application was filed timeously on 10/04/2023 after commencement of execution on 06/04/2023. Further, he submitted that the appellant has indicted its willingness to deposit a bank guarantee for the full decretal sum.

22. With regard to its application for release of the motor vehicle, the appellant submitted that the allegation of the sale having taken pace is an afterthought meant to defeat the application for stay. That even if the sale was conducted, this court can still set it aside and give orders for deposit of security. It relied inter alia on  Spire Bank Ltd –vs- Gladys Njeri Wainaina & Anor [2021] eKLR where a sale by public auction was set aside together with all consequential orders.

23. The appellant urged this court to ensure that the appeal is not rendered useless.

24. With regard to the 1st respondent’s application to set aside the interim orders of stay, the appellant framed the question for determination to be; whether the High court is bound by conditional orders of stay issued by the trial court.

25. Relying on Order 62 Rule 6 of the Civil Procedure Rules 2010, the appellant submitted that the High Court is not in any way bound by the orders of the trial court. It relied inter alia on Stanley Karanja Wainaina & Anor –vs- Ridon Anyangu Mutubwa [2016] eKLR where the court stated;

“Counsel for the Respondent submitted on the provision of Order 42 Rule 6 (1) of the Civil Procedure Rules and argued that the Appellants had been granted a stay of execution by the trial court and in bringing the present application it was an abuse of the court process. In my view, Order 42 Rule 6(1) allows a party to file another application for stay of execution in the High Court whether the application for such stay shall have been granted or refused by the court appealed from. I appreciate the argument by the learned counsel and this court shares the same sentiment in that once an application has been dealt with by a court of competent jurisdiction and between the same parties, a similar application cannot be filed before another court as that would be an abuse of the court process or at best, res judicata. Unfortunately, that legal provision is part of our laws and until the same has been amended, we have no choice but to live with it as it is.

26. The appellant also relied on Patrick Kalava Kulamba & Anor –vs- Philip Kamosu & Rhoda Ndanu Philip (Suing as the legal representative of the estate of Jackline Ndinda Philip [2016] eKLR where it was held that;

“12. For the purposes of this case, the operational words are as underlined above. Thus whether an application for stay pending appeal has been allowed or rejected in the lower court, the High Court “shall be at liberty…to consider” an application for stay made to it and to make any order it deems fit. The High Court in that capacity exercises what can be termed “original jurisdiction” and from my reading of the rule, the jurisdiction is not dependent on whether or not a similar application had been made in the lower court or the fate thereof…”

Submissions by the 1st Respondent
27. With regard to the application for stay of execution; the 1st respondent submitted that the delay in filing the application was inordinate and that the appellant embarked on a frolic of filing application after application in order to frustrate him. That no explanation has been given as to why it took 8 months to lodge the application.

28. He submitted that the appellant has not stated any economic or financial loss that it would suffer and there is no evidence that its business will collapse or that its operations will ground to a halt.. He relied on Everlyne Jennifer Mwakha –vs- Nubra Ltd (2020)eKLR where the court stated;

“33. It is beyond argument that an applicant is required to place before the court sufficient evidential support establishing substantial loss. The words ‘substantial loss’ cannot mean the ordinary loss to which every judgment debtor is necessarily subjected to when he loses his case and is deprived of his property in consequence.”

29. With regard to security, the respondent submitted that the appellant cannot be trusted to obey the orders of this court due to its disobedience of the conditional orders given by the trial court. He urged this court not to turn a blind eye to that disobedience. He relied inter alia on ICEA Lion General Insurance Company –vs- Chris Ndolo Mutuku t/a Crystal Charlotte Beach Resort [2020[ eKLR where the court stated;

“The appellant had been granted a conditional stay of execution of decree in the lower court. That conditional stay was made on 6/2/2020. The condition was that the appellant deposits kshs 600,000/= into a joint interest earning account to be operated by both parties’ advocates and as the Respondent Advocate party/plaintiff was self-represented, he was automatically to be one of the joint account holders. The deposit was to be made within 45 days of the date of the ruling. There was no compliance with those orders of stay…..if for any reason, the appellant was prevented from implementing the conditional stay, the law is pretty clear. The appellant should have approached the court that issued a conditional stay, to seek for enlargement of time within which to comply with the orders of conditional stay.”

30. He also cited Francis Mwaura Ngugi & Anor –vs- Monica Njeri Kinuthia [2020] eKLR where the court stated;

“When the applicant first approached this court with the instant application, he was granted conditional stay of execution that required him to deposit a sum of Ksh 1 million. He did not comply with the order and his counsel claimed that this amount was too high. The vague offer of a motor vehicle logbook is not a serious pledge to furnish security. In the circumstances, I am not persuaded that that the application is merited. The same is dismissed with costs to the Respondent.”

31. With regard to the application seeking the release of the motor vehicle and trailer, the respondent submitted that the application has been overtaken by events as there is a certificate of sale (JMK2) to Hassan Haji Guhad.

32. With regard to the appellant’s deposition that the order stopping execution was duly served, the respondent submitted that the Affidavit of service by Mark Mwanzia dated 24/4/2023 did not state the email address that was used to serve the firm of Amutalah Robert & Co Advocates. That the affidavit does not state how the auctioneer was served and how the serving advocate got to know the auctioneer and from which previous engagement they got acquainted with each other. It was also his submission that the affidavit does not indicate the telephone number used or where the service was done. That by the time the firm of Mwakisha was served at 15.20pm; the auction had already been done.

33. He submitted that from the appellant’s pleadings, the appellant was completely wrong with regard to the email address of AMUTALLAH ROBERT & CO. ADVOCATES. That in the applications dated 10/04/2024 and 24/04/2023, the email was wrongly captured as ROBERTAMUTALLAADVOCATES@GMAIL.COM whereby the appellant omitted the letter ‘H’ at the end of the name ‘AMUTALLAH’. The respondent contended that all the pleadings filed by his advocate indicate their email address as ROBERTAMUTALLAHADVOCATES@GMAIL.COM.  He submitted that the appellants advocate was not diligent enough.

34. Further, the 1st respondent relied on Order 22 Rule 64(2) of the CPR 2010 which states  On payment of the purchase money, the officer or other person holding the sale shall grant a receipt for the same, and the sale shall become absolute, for the submission that the execution was complete with regard to the sale of the motor vehicle and trailer. He placed further reliance on Satwant Singh Dhanjal & 2 Others –vs-Kenya Revenue Authority (2005) eKLR where the court stated;

“Title in the goods, in my view, passes to the purchaser at an auction in terms of the rules of the auction. Besides, it is I think a misnomer in law, to speak of the Defendant passing title in the goods to the plaintiffs. In an auction sale like the one in this case conducted pursuant to a statutory power, title passes to the purchaser by operation of law and not because the Defendant or the person exercising the statutory power of sale has any title in the goods. The issue of title passing to the plaintiffs by the Defendants does not arise.”

35. With regard to the 1st respondent’s application seeking to set aside the orders of stay granted to the appellant, the 1st respondent submitted that the application is premised on the grounds that the appellant failed to make a full disclosure to this court otherwise the orders would not have been issued. He relied on Okiya Omtatah Okoiti –vs- Joseph Kinyua & 2 Others (2018) eKLR where the court stated;

“22. There seems to be no dispute from the two sides that the test for the recalling of an ex parte order is whether or not the order was obtained without the ex parte applicant making a full disclosure of material facts or through misrepresentation of material facts. The applicants herein have relied on several judicial precedents from the English as well as Kenyan Courts to support the said threshold for recalling of ex parte orders. In the King –vs- The General Commissioners for the Purposes of the Income Tax Act for the District of Kensington (1917)1 K.B. 486 the Court laid down the legal principle that ex parte applicant must make a full and fair disclosure of all material facts. Warrington LJ had the following to say at page 509; ‘It is perfectly well settled that a person who makes an ex parte application to the court that is to say, in the absence of the person who will be affected by that which the court is asked to do is under an obligation to the court to make the fullest disclosure possible of all material facts within his knowledge, and if he does not make that fullest possible disclosure, then he cannot obtain any advantage from the said proceedings and he will be deprived of any advantage he may have already obtained by means of an order which has thus wrongly obtained….
25. In  Bank Mellat –vs- Nikpour (1985) FSR 87, 92, Donaldson J stated the sanction for material non-disclosure more candidly thus; The principle that no injunction obtained ex parte shall stand if it has been obtained in circumstances which there was a breach of the duty to make the fullest and frankest disclosure is of great antiquity. Indeed, it is so well enshrined in the law that it is difficult to find authority for the proposition, we all know, it is trite law.”

36. I have carefully considered the three applications, the supporting affidavits and annexures, the responses and the rival submissions, the central issue is whether motor vehicle KCG 788U and trailer ZE 707S was sold through public auction before the e ex-parte order of stay of execution obtained by the appellant and whether that stay order was deserved in the first place. In essence whether the applications before me are tenable

Analysis & Determination
37. The record shows that on 7th March 2023, upon the lapse of the stay orders that had been issued by the subordinate court on 20th Nov 2022 in Kilungu PMCC 149 of 2018, the court gave an order granting the plaintiff /   1st respondent leave to proceed with execution of its judgment and decree. . The 1st respondent’s position is that execution he complied and the execution was completed.
38. On the other hand, the appellant’s position is that execution was not done as it was stopped by the interim stay orders of this court.

39. In its application for stay to this court, the appellant acknowledged that the process of execution had started hence the rush to obtain the stay orders. The same is evidenced by the warrants of attachment issued on 08/03/2023 and the Notice of Sale of movable property from Status Auctioneers. In the said notice, the property to be sold is described as ‘M/V KCG 788U (Prime mover) and Trailer ZE 707S-Ocean trail king’.

40. I have perused the two newspaper adverts exhibited by the appellant and the 1st respondent. They are different. It is not clear in which Newspaper the applicant took its copy . The 1st respondents appears to have been from the Star. The newspaper extract exhibited by the appellant shows that the motor vehicle was to be sold by public auction on ‘Wednesday 19th April 2023’ whereas the newspaper extract  exhibited by the 1st respondent shows that the sale was to take place on ‘17/04/2023.’
41. The parties did not address this factual issue in their affidavits. The certificate of sale shows that the vehicle was auctioned on 17/04/2023. To resolve the issue I turn to Order 22 Rule 65 of the CPR, 2010 provides that ‘No irregularity in publishing or conducting the sale of movable property shall vitiate the sale; but any person sustaining any injury by reason of such irregularity at the hand of any other person may institute a suit against him for compensation, or (if such person is the purchaser) for the recovery of the specific property and for compensation in default of such recovery.’


42. The important question is whether the 1st respondent was aware of the stay orders from this court before the auction. Counsel for the appellant swore an affidavit of service dated 24/04/2023. He deposed that on 18/04/2023, he caused the order issued on 19th April 2024 (sic) to be served upon M/s Chris Allan t/a Status Auctioneers, ‘who is well known to me’. He also deponed that he served counsel for the 1st respondent Amutallah & Co Advocates through their email and the firm of Mwakisha & Co Advocates. He deponed that he annexed copies of the acknowledged documents.
43.  The firm of Mwakisha & Co Advocates has received the order at 1520HRS on 18th April 2024, There is a WhatsApp communication with Status Auctioneers with blue ticks at 1:12PM but the date is not shown. How would the court determine that it was served on the 18th ? It does not show who served the order and when they served the order.
44. If the certificate of sale is anything to go by, the auction had already been done by the time the auctioneer was served.

45. I have also not seen any evidence of service upon counsel for the 1st respondent, The alleged service via email was highly contested by the 1st respondent who maintained that the appellant used the wrong email address. I have looked at the appellant’s pleadings where the said email address is captured as robertamutallaadvocates@gmail.com. On the other hand, the 1st respondent’s pleadings capture his advocate’s email address as robertamutallahadvocates@gmail.com. The difference is the omission of the letter ‘h’ after the name Amutallah. This might appear to be a small error but evidently those are two dirrenet email addresses and it means that the intended email is not delivered. The appellant did not even attach an extract of the said email communication. Consequently, there is no evidence of service via email.

46. Further, the advocate deposed that he also served the order upon the firm of Mwakisha & Co Advocates. The firm was acting for Michael Okoth who had been named as a defendant in the trial court and was sued in his capacity as the registered owner of the accident motor vehicle. The firm was served on 18/04/2023 at 1520hours which again was after the auction had already been done. In any case, service to the firm would not have impacted the auction even if it had been done on time. The record shows that it was their client, Michael Okoth, who applied to have Bubble Logistics as a third party in the suit.
47. The evidence is therefore clear that the motor vehicle was sold by public auction on 17/04/2023.

48. In this event the application dated 10/04/2023 has  been overtaken by events as the execution has already happened. Similarly, the subsisting interim orders of stay are not serving any purpose..

49. The appellant argued that the affidavit sworn by Amutallah Robert Advocate should be struck off for making depositions on contentious matters. I have looked at the application dated 19/04/2023 and the same is supported by an affidavit of the 1st respondent and not that of his advocate. The argument by the appellant is misplaced.

50. The appellant also argued that this court can set aside the sale of the motor vehicle and order that the decretal award be deposited as security. Setting aside of the sale is a substantive issue which requires that this court be moved properly and for all affected parties to be onboard. The purchaser of the motor vehicle is not a party in these proceedings and such on order would adversely affect him without giving him a right to be heard. The case of Spire Bank Ltd (above) relied on by the appellant is distinguishable because the court found that there was no evidence that an auction had taken place. The court found as a matter of fact that the motor vehicle was still registered in the applicant’s name two years after the purported auction. Further, the execution in that case resulted from an interlocutory judgment which had been set aside and the matter was to proceed for full hearing.
51. The application dated 19th April 2023 clearly indicates how the applicant failed to disclose the fact of what had proceeded before the trial court and the failure to comply with the orders granted by the trial court. There was a conditional order of stay made on 30th November 2022, which the appellant failed to comply with. Then there was the execution order granted by the lower court for failure to comply with the conditional stay. The orders of stay granted upon the application dated 10th April 2023 were not deserved.
52. In the totality of the circumstances, the two applications by the appellant are not merited and each is dismissed with costs.
53. The 1st respondent’s application dated 19th April 2023 is allowed in terms of prayer 2 – the ex parte interim orders of stay of execution dated 18th April 2023 be and are hereby set aside.
Dated, signed and delivered this 26th July 2024
Mumbua T Matheka
Judge