HIGH COURT CIVIL APPEAL NO. E036 OF 2023
FAMILY BANK LIMITED……………………APPELLANT/APPLICANT
-VERSUS-
SHADRACK MWANZIA MUTUA…………………………RESPONDENT
RULING
1. Before this court for determination is the Notice of Motion dated 22nd
May, 2023 filed by the Appellant/Applicant FAMILY BANK LIMITED in which the following orders were sought.
“ 1. Spent
2. Spent
3. THAT this Honourable Court be pleased to grant an Order
of Stay of Execution of the Ruling delivered on 17th May, 2023 in Nyeri MCCC No. 281 of 2015 - Family Bank Limited Vs Shadrack Mwanzia Mutua pending lodging, hearing and determination of the intended Appeal.
- THAT this Honourable Court does direct that the Suit in Nyeri MCCC No. 281 of 2015 – Family Bank Limited Vs Shadrack Mwanzia Mutua be transferred and heard before another magistrate.
- THAT the costs of and incidental to this Application be in the cause.”
2. The application was premised upon Sections 1A, 1B, 3A, 75, 78 and
79G of the Civil Procedure Act, Cap 21, Laws of Kenya, Order 42
Rules 1 & 6, Order 43 Rule 1 and order 51 Rule 1 of the Civil
Procedure Rules 2010, Article 50 of the Constitution of Kenya
2010 and all other enabling provisions of the law and was supported by
the Affidavit of even date and the further Affidavit dated 8th April, 2024
sworn by HENRY MACHARIA an Advocate of the High Court of
Kenya.
3. The Respondent SHADRACK MWANZIA MUTUA opposed the
application through the Replying Affidavit dated 8th June, 2023 sworn
by KARWERU MUCHEMI CHARLES also an Advocate of the High Court
of Kenya.
4. The matter was canvassed by way of written submissions. The Applicant
filed the written submissions dated 12th April, 2024 whilst the
Respondent relied upon his written submissions dated 16th February,
2024.
BACKGROUND
5. The Applicant herein had filed a suit against the Respondent being Nyeri
MCCC NO. 281 of 2018. On 3rd August, 2022, the lower court
dismissed the said suit for want of prosecution and awarded costs to the
Respondent.
- A Decree dated 13th October, 2022 together with Auctioneers Proclamation Notices were duly served upon the Applicant. The Applicant then filed a Notice of Motion dated 21st October, 2022 seeking the following orders:-
“ 1. SPENT
2. SPENT
3. SPENT
4. That the Honourable Court do set aside the order for
dismissal of the suit made on the 3rd August, 2022, and
the matter be reinstated and allowed to proceed to full
hearing.
5. That all the proceedings subsequent to the dismissal order
made as from the 19th June, 2019, be vacated and/or
stayed.
6. That the costs of and incidental to this application be
provided for.”
- That application was heard and on 1st March, 2023 Hon. AG KIBIRU Chief Magistrate delivered his ruling in which he made the following orders;-
“1. That the order made on the 3rd August, 2022, dismissing
this suit for want of prosecution, and all other orders
subsequent thereto are hereby set aside.
2. That this matter be and is hereby reinstated and same to
proceed to hearing forthwith.
3. That the Applicant/plaintiff shall bear the thrown away
costs as from the date this suit was dismissed for want of
prosecution, together with the costs of this application.
4. That the said costs in (3) above be agreed upon by both
parties or be assessed by court and same be paid within
sixty (60) days of this ruling.
5. That failure to comply with (4) above, this application shall
stand dismissed.” [Own emphasis]
- As it transpired the Applicant did not meet the Sixty (60) day deadline in paying the throw away costs. Counsel for the Applicant averred that he reached out to the Respondents Advocate and requested a quotation for the throwaway costs. Vide a letter dated 20th March, 2023 the Respondent proposed throw away costs of Kshs. 51,814.
9. The Advocate for the Applicant felt that this amount was exaggerated
proposed an amount of Kshs. 30,000/=.
10. Thereafter an assessment of the costs was sought from the court. On
8th May, 2023 the Civil Registry issued an invoice for the requests by
which time sixty (60) days had already elapsed.
11. Eventually on 11th May, 2023 the Applicant proceeded to settle the
amount of Kshs. 51,814 as throwaway costs. This was about seventy
(70) days after the ruling of 1st March, 2023.
12. The Applicant complains that on 17th May, 2023 the learned trial
magistrate ‘whimsically’ dismissed a motion dated 21st October, 2023
filed by the Applicants.
13. The Applicant contends that they did take all reasonable steps to execute
the Decree, despite laxity on the part of the court in assessing the costs
payable and despite the amounts demanded being in their view
exorbitant. The Applicant now seeks a stay of the ruling delivered on
17th May, 2023 pending the hearing and determinations of their
intended appeal.
14. In opposing the application the Respondents Advocates avers that the
orders issued on 1st March, 2023 allowed for reinstatement of the suit
SUBJECT TO payment of throwaway costs within sixty (60) days.
15. The Respondents Advocates states that following the said ruling he
wrote to the Applicants Advocate as a follow-up to the orders, and
tabulated the throwaway costs at kshs. 51,814/=, Receiving no
response to his tabulation the Respondents Advocate asserts that it was
he, not the applicants Advocate who asked the court to assess the costs.
The court issued an invoice for assessment of costs on 8th May, 2023.
16. On 8th May, 2023 Counsel for the Applicant wrote a letter to the
Respondents indicating that the tabulated costs of Kshs. 51,814 were
in their view exorbitant and suggested a lower figure of Kshs. 30,000.
That eventually on 11th May, 2023 at 5.07pm counsel for the
Applicant sent to the amount of Kshs. 51,814/- by Mpesa to the
phone of the Respondents Advocate.
17. Counsel for the Respondent submits that by 8th May, 2023 the orders
of the court of 1st March, 2023 had already taken effect thus the suit
stood dismissed by operation of the orders made on that date. It is
urged that the present application be dismissed with costs.
ANALYSIS AND DETERMINATION
18. I have carefully considered this application, the reply filed thereto as
well as the written submissions filed by both parties.
19. Order 42 Rule 6 which sets out the principles for stay of execution
provides as follows;-
- No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of in so far as the court appeal 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 to appeal is preferred may apply to the appellate court to have such order set aside. No order for stay of execution shall be made under sub rule
- Unless –
- 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
- 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.
- ………………………………………………………”
20. Therefore in order to merit the orders being sought the applicants must
satisfy the court.
- That the application for stay was filed without unreasonable delay.
- That they stand to suffer substantial loss unless the stay order is granted.
- That security for the performance of the decree or order has been given by the Applicants.
21. The Ruling in question which I note was not annexed to the application
was made on 17th May, 2023. The current application for stay was
made on 22nd May, 2023 a few days after the said Ruling / Order.
Accordingly I am satisfied that the application was filed in a timely
manner.
22. The orders made by the trial court on 1st March, 2023 have been
annexed and are referred to earlier in this ruling. The said orders
allowed for reinstatement of the suit provided that throwaways costs
were paid within sixty (60) days.
23. Those orders were clear and unambiguous. The clock began to click
and time began to run on 1st March, 2023. The Applicant did not meet
the set down conditions and failed to pay the costs within sixty (60)
days nor did the Applicant approach the court seeking for an
extension of time within which to make the payment required.
24. The Applicant states that he sought a quotation from the Respondent
and on 20th March, 2023 the Respondent quoted an amount of Kshs.
51,814 which in the applicants view was excessive. The Applicant then
wrote to the court seeking an assessment of the throwaway costs.
25. However there is no evidence of any letter written by the Applicant to
the court seeking an assessment of the throwaway costs. It is trite law
that he who alleges must prove. There is no evidence of any letter
written by the Applicant to the Respondent seeking a quotation.
26. On the other hand the Respondents have exhibited a letter dated 20th
March, 2023 (Annexture ‘HM2’ to the Replying Affidavit dated 8th
June, 2023) written to the Applicants Advocate quoting amount of
Kshs. 51,814/=.
27. The Applicant vide a letter dated 8th May, 2023 (Annexture) responded
that the quoted figure was on the higher side and proposed an amount
of Kshs. 30,000 instead.
28. On 8th May, 2023 the Civil Registry issued the applicants Advocate
with an invoice for the assessment of costs (Annexture ‘Hm4’). This
invoice came after the Sixty (60) day period specified by the trial
court had elapsed. It was not until 11th May, 2023, more than
seventy (70) days after the order had been issued that the applicants
Advocate forwarded the sum of Kshs. 51,814.00 to the Respondents
Advocate (see Annexture ‘HM-5’)
29. As stated earlier the orders made by the trial court on 1st March, 2023
were clear and unambiguous. The court gave a time line being sixty
(60) days for the payment of throwaway costs. In my view this was
ample time to allow for any negotiations by the parties on the amount
to be paid.
30. The case belonged to the Applicant. As such the Applicant had the
obligation to ensure that the timelines set out by this court were strictly
adhered to. The Applicant ought to have been vigilant in ensuring that
throwaway costs were paid within the period specified by the trial court.
If the Applicant felt that it required more time to comply then an
application for extension of time ought to have been filed. This was not
done.
31. In my view the Applicant was lax and waited for over one (1) month
after it had been issued with the figure for throwaway costs to settle the
same Equity it is said will not aid the indolent.
32. Finally the orders which the applicant now seeks to stay are the orders
which were made on 17th May, 2023 dismissing the suit. An order of
dismissal is a negative order and in the circumstances there would be
nothing to stay. In the case of RAYMOND M. OMBOGA -VS-
AUSTINE PYAN MARANGA Kisii HCCA No. 15 of 2010 the court
held as follows:-
“The Order dismissing the application is in the nature of a negative order and is incapable of execution save perhaps for costs and such order is incapable of stay. Where there is no positive order made in favour of the respondent which is capable of execution, there can be stay of execution of such an order. The applicant seeks to appeal against the order dismissing his application. This is not an order capable of being stayed because there is nothing that the applicant has lost. The refusal simply means that the applicant stays in the situation he was in before coming to court and therefore the issue of substantial loss that he is likely to suffer and or the appeal being rendered nugatory does not arise.” [Own emphasis]
32. I am not persuaded that sufficient cause has been advanced to warrant
this courts exercise of its discretion in favour of the Applicant. The
Applicant simply took their time regarding their compliance with the
orders of the trial court. They cannot blame any other party for their
indolence.
33. As such I find no merit in this application. The same is dismissed in
its entirety. Costs to be met by the Applicant.
Dated in Nyeri this 6th day of June, 2024.
…………………………………………