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JudgmentHarrison Muingie Mulandi VS Kenya National Highways Authority28 min read

Harrison Muingie Mulandi VS Kenya National Highways Authority

High Court at Machakos High Court · · Hon.Lady Justice Noel Adagi

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

PETITION NO. E010 OF  2024

IN THE MATTER OF ARTICLES 2(1), 2(5), 3(1), 10,19, 20, 22(1), 23(3) & 24 OF THE

CONSTITUTION OF KENYA

AND

IN THE MATTER OF ALLEGED CONTRAVENTION OF THE CONSTITUTIONAL

RIGHTS AND FUNDAMENTAL FREEDOMS UNDER ARTICLES 10,25,27.28,35,

40,43,46,47 AND 50 OF THE CONSTITUTION OF KENYA,2010

AND

IN THE MATTER OF THE KENYA ROADS ACT, CAP 408 LAWS OF KENYA

AND

IN THE MATTER OF THE KENYA ROADS (KENYA NATIONAL HIGHWNAY

AUTHORITY) REGULATIONS,2013

AND

IN THE MATTER OF THE TRAFFIC ACT, CAP 403 LAWS OF KENYA

BETWEEN

HARRISON MUINGE MULANDI ……PETITIONER/RESPONDENT

VERSUS

KENYA NATIONAL HIGHWAYS

AUTHORITY….…………………………. RESPONDENT/APPLICANT

RULING

The application

  1. The Respondent/Applicant’s (hereinafter referred to as “the Applicant”) Notice of Motion application is dated 7th November, 2024 and filed under Certificate of urgency. It is brought under Section 1A, 1B and 3A of the Civil Procedure Act Cap 21, Order 42 Rule 6 of the Civil Procedure Rules, 2010 and all other enabling provisions of the law.
  2. The Applicant seeks for the orders that:
  3. Spent;
  4. Spent;
  5. THAT this Honourable Court be pleased to issue an order of stay of execution of the ruling delivered on 31st October 2024 and all consequential orders pending the hearing and determination of the intended appeal to the Court of Appeal.
  6. Costs be in the cause.
  7. The application is supported by the affidavit of Dr. Eng. Michael A. Ngala, OGW which basically repeats the averments contained in the earlier Replying Affidavit sworn on behalf of the Applicant to the Petitioner’s injunction application. The application is further premised on the grounds on the face of the application. Among the grounds are that: -

a) This honourable court delivered a ruling on 31st October, 2024 allowing the Petitioner’s application for injunction and directed the Applicant to unconditionally release the Petitioner’s motor vehicle registration No. KDH 471M (“the motor vehicle”).

b) The Applicant is dissatisfied with the said ruling and intends to appeal against it at the Court of Appeal.

c)The Applicant has a strong arguable appeal with probability of success as the impugned decision is premised on gross misrepresentation of the law.

e) If an order of stay of execution is not granted, substantial loss may result to the Respondent as the Petitioner will commence execution by pursuing release of the motor vehicle.

f)  If the motor vehicle is released to the Petitioner, the intended Appeal will be rendered nugatory and the Respondent will have been denied its right to be heard on the Appeal.

g) The motor vehicle was grossly overloaded and it will be against the public interest to allow it back on the road without offloading the excess weight or redistribution of the cargo contrary to the law.

h) There has been no delay in bringing the application.

i)  It is in the interests of justice that the orders sought are granted and release of the vehicle unconditionally is detrimental to road users and the public whose taxes are used to build and maintain roads.

The Response

  1. The Petitioner/Respondent (hereinafter referred to as “the Petitioner”) has opposed the application vide the Replying Affidavit sworn on 20th November 2024. The Petitioner depones that:
  2. The application is brought in bad taste and is purely aimed at circumventing compliance with the court’s earlier orders;
  3. The Applicant has come to Court with unclean hands and is asking this Court to do the unthinkable; take away the orders that it had issued upon examining an application seeking temporary orders of injunction wherein both parties were represented by counsel and argued their cases conclusively.
  4. This Court considered the application dated 18th July 2024 and found in its Ruling dated 31st October 2024 that the Petitioner had satisfied the threshold for granting of temporary orders of injunction. On the said date, the Applicant was represented by Counsel in court and upon the Court pronouncing itself, no application for stay of the Ruling was made in Court. Consequently, the Petitioner sought to enforce the orders of this Court through his advocates on record.
  5. On 5th November 2024, his advocates on record wrote to the Applicant's advocates forwarding the court's order and indicating that they would present themselves at Mlolongo Weighbridge on 6th November 2024 for compliance with the orders and the said letter is attached. The said email did not elicit a response. On the same date, his advocates wrote to the Director General of the Applicant seeking compliance with this court's orders and despite promises to look into the matter and revert, this letter is yet to receive a response or action to date. The said letter is attached.
  6. On 7th November, 2024, after presenting himself at Mlolongo Weighbridge on the said date and on 6th November,2024, he instructed his advocate to warn the Applicant on the institution of the contempt proceedings against them and as an after-thought, to avert, an application that sought to affirm this court's authority, the current application for stay was fronted. The respective email is attached.
  7. The Respondent is seeking stay of orders that they have otherwise failed to comply with blatantly and this Honorable Court should be wary of such a party who on the one hand disrespects and dishonors this court while seeking to profit from its protection on the other hand.
  8. He has been advised by his advocates on record which advise he believes to be true that for an application for stay pending appeal to be granted, a party must demonstrate substantial loss that they are to suffer in the event it is not granted. In the event such stay is granted, he is the one who stands to suffer substantial loss that cannot be compensated in any manner whatsoever.
  9. Since 20th February, 2024, the Applicant has unjustifiably held his source of livelihood condemning him to untold suffering due to lack of livelihood. Meanwhile, the loan that financed the acquisition of the motor vehicle continues to skyrocket with interests activated on his defaults.
  10. This court should take judicial notice that appeals in Kenya take between three and five years to be heard and determined and if this Court grants stay pending appeal, then the vehicle will waste away rendering even the very Petition before this court an academic process. At present, the level of damage witnessed between February to date is unfathomable being kept on the open air, without due automobile care and regular servicing in deplorable conditions. Indeed, he is the only one who has burden of taking care of the motor vehicle.
  11. He will continue to suffer loss since the financier would still seek to realize security from their loan thus pushing him into a tussle with auctioneers in the behest of an already unbearable life condition.
  12. This Court had already considered the totality of arguments in this matter and thus staying the temporary orders would amount to giving a right with one hand and taking it with the other whose effect the strangling my only ray of hope within the temple of justice against the shackles of a rogue and non-compliant Respondent.
  13. He has been advised by his advocates on record which advise he believes to unconditionally being 'overloaded'. Despite such overloading being an act of the Respondent who took control of the truck for over 24 hours before weighing it, nothing stops this Court in its inherent powers from ordering the supply of the reliever vehicle to ease the 'overload' in the truck.
  14. As a matter of fact, he presented himself on 6th and 7th November 2024 with a reliever vehicle to ease the 'overload' occasioned by the Respondent knowing that it is part of their procedure for release of any 'overloaded' motor vehicle. Ironically the Respondent is quick to waive its mandate and powers under the Kenya Roads Act and the East Africa Community Vehicle Load Control Act 2016 yet conveniently forgets that the said powers must be exercised within the four corners of the constitution of Kenya and as such it cannot claim statutory protection for disobeying court orders and disregarding the constitution.
  15. Further, the actions of the Respondent of detaining the motor vehicle diametrical opposes the soul and purpose of the East African Community treaty which was meant to facilitate trade in the region and not stifle it as the Respondent is doing by detaining the motor vehicle thereby crippling the Petitioner's business and only source of revenue.
  16. The application date 7th November 20204 is devoid of merit and is brought in bad faith by a party who has unclean hands and seeks to benefit from the orders of this court while at the same time violates other orders.

SUBMISSIONS

Applicant’s Submissions

  1. The application was canvassed by way of written submissions. The Applicant filed their submissions on 2nd December 2024. This court notes that the Applicant’s submissions are a replica of their arguments made in the initial application for injunction by the Petitioner. They however, further submitted that, the motor vehicle was grossly overloaded and it will be against public interest to allow it back on the road without offloading the excess weight or redistribution of the cargo contrary to the law. Unconditional release of the motor vehicle would result in continued destruction of the road with the sanction of the Court.
  2. That overloading is the single worst cause of damage/failure of road pavements worldwide. Weighbridges are therefore integral in ensuring that roads, constructed at high cost, and using public funds exist for their entire design life. To release the motor vehicle unconditionally will be detrimental to road users and the public whose taxes are used to build and maintain roads.
  3. In addition, the release of the suit motor vehicle unconditionally as ordered by the Court will amount to destruction of evidence since the motor vehicle will not be compliant at the point of release.
  4. Under Section 17 (2) of the EAVCL Act, when a vehicle is found to be overloaded, the transporter is required to redistribute the weight and thereafter the vehicle is reweighed to confirm whether it is within the required legal limit before it is released. The redistribution of weight requires that a reliever vehicle is provided by the transporter to which the excess weight is offloaded.
  5. In the instant case, no such directive was given by the court. The Petitioner was only directed to release the vehicle unconditionally.
  6. The Applicant intends to file an appeal at the Court of Appeal. A Notice of Appeal to this effect has been filed and served. The Applicant attached a draft Memorandum of Appeal. The Petitioner has commenced execution of the court’s order as confirmed in the Replying Affidavit. 
  7. From the foregoing, it is evident that the Applicant stands to suffer substantial loss if the order for stay of execution pending the determination of this appeal is not granted. They referred to the case of James Wamalwa & Another vs. Agnes Naliaka Cheseto [2012] eKLR, where the court held:

“The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal ... the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”

  1. They also cited the case of Samvir Trustee Limited V Guardian Bank Limited [2007] eKLR, the court held that:

“It is my humble view that for the applicant to obtain a stay of execution, it must satisfy this court that substantial loss would result if no stay is granted.  It is not enough to merely put forward allegations or assertion of substantial loss, there must be empirical or documentary evidence to support such contention.  It means the court will not consider mere assertions of substantial loss on the face value but the court in exercising its discretion would be guided by adequate and appropriate evidence of substantial loss. “

  1. They further submitted that there is doubt that their appeal will be rendered nugatory if an order for stay of execution pending the hearing and determination of the intended appeal is not granted. Based on the grounds outlined in the draft Memorandum of Appeal, the intended appeal raises cogent issues with high chances of success and if stay is not granted, the same will be rendered an academic exercise. 
  2. The Applicant urged the court to find that it stands to suffer substantial loss if the order for stay of execution pending hearing and determination of the intended appeal is not granted.
  3. The Applicant submitted that the application was made without unreasonable delay since the impugned decision of the trial court was made on 31st October, 2024 and the Respondent filed the application for stay on 8th November, 2024, seven days after the ruling was delivered. 
  4. On the condition for security for costs, the Respondent submitted they were ready to abide by any orders issued by the court on furnishing of security for costs.

Petitioner’s Submissions

  1. The Petitioner on his part filed his submissions dated 29th November 2024.  The Petitioner submitted that the Applicant has approached this Court through Order 42 Rule 6 of the Civil Procedure Rules seeking to stay the execution of the Ruling delivered by on 31st October 2024. That the principles guiding stay of execution was well cemented in the case of Matata & another v Rono & another (Civil Appeal E034 of 2024)[2024] KEHC 2799 (KLR) (19 March 2024) (Ruling) where the Court stated;

“The three conditions to be fulfilled can therefore be summarized as follows; a. that substantial loss may result to the applicant unless the order is made b. application has been made without unreasonable delay c. security as the court orders for the due performance”

  1. The Petitioner submitted that in the instant case, the Applicant does not deserve the stay sought because of two main counts; first is that the Applicant has not demonstrated any substantial loss it will suffer if the stay is not granted and secondly the, Respondent/Applicant has not offered any security for due performance.
  2. With regard to substantial loss, the Petitioner submitted that the Applicant will not suffer any loss let alone a substantial one if the stay is not granted. Under Order 42 Rule 6 the burden rests on the Applicant to demonstrate the substantial loss it will suffer should the stay be denied.  He cited the case of Tropical Commodities Suppliers Ltd & Others vs. International Credit Bank Ltd (in liquidation) [2004]2 EA 331 in which Ogolla, J eloquently defined ‘substantial loss' to mean;

"Substantial loss does not represent any particular mathematical formula. Rather, it is a qualitative concept. It refers to any loss, great or small, that is of real worth or value as distinguished from a loss without value or a loss that is merely nominal'

  1. The Petitioner submitted that the Applicant has failed to demonstrate the substantial loss it will suffer or how the execution of the Ruling delivered on 31st October 2024 will render its Appeal nugatory. The only explanation for substantial loss offered by the Applicant is that substantial loss will occur if the Petitioner executes the Ruling dated 31st October 2024.
  2. The Petitioner cited the case of James Wangalwa & Another V Agnes Naliaka Cheseto Misc Application No 42 of 2011 [2012] eKLR where Gikonyo, J stated that:

“No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. [Emphasis added] Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal. [Emphasis added]

21.  The Petitioner added that execution of a ruling cannot be in itself the cause of the substantial loss. A perusal of the case at hand reveals that if this court grants the stay, then it is the Petitioner who will suffer substantial loss since;

a.   The Petitioner purchased the impugned motor vehicle through a bank loan which require regular repayment. Due to the detention of the motor vehicle the Petitioner does not have any other financial asset to keep up the Ioan repayments opening him up to punitive interests due to default and the possibility of his properties being auctioned to realize the Ioan.

b.   The driver of the impugned motor vehicle who was an employee of the Petitioner has been left jobless and currently cannot make ends meet for either himself or his family due to the continued detention of the motor vehicle.

c.   The Petitioner has also lost his source of sustenance as the motor vehicle was his source of livelihood and he is struggling to barely stay afloat.

  1. The Petitioner relied on Petition No. E005 of 2024; John Mwaniki Kiarie & Another Vs Kenya National Highway Authority (Supra) this court faced with an application for interlocutory injunctive orders premised of similar facts and the court noted as follows;

“on the second issue of irreparable damage, it has been shown that the   suit lorry is financed by Sidian Bank [in the instant case the motor vehicle is financed by Equity bank] and obviously the applicant pays his monthly obligation when the suit lorry is hired for reward on normal business days. If the same is to be left at the Respondent's yard, both parties will lose as the bank sooner or later will exercise its lien over the same, (which lien is a priority to all other debts/liabilities) and will simply stake its claim and sell the suit lorry to recover the debt owed. Further... it is not the respondent per see, who will pay damages from their own resources but to will use tax payer money to do so. If the suit lorry were to remain detained and the applicant is to succeed in this petition, the damages due, plus interest and costs which the applicant will be entitled to will run into several millions to the detriment of 'Wanjiku, the taxpayer and ultimate bearer of this burden'. That would not promote prudent use of scarce resources, which can be put to better use by the Government and also will run foul of Article 201(d) of the constitution, which expressly provides that public money shall be used in a prudent and responsible way.

  1. As this court already found in its Ruling dated 31st October 2024, the Petitioner stands to suffer irreparable injury which in the instant case translates to substantial loss if this court grants stay as prayed for by the Applicant. Further there is no threat of rendering the Applicant's intended appeal academic if the ruling is executed. In the unlikely event the Applicant's appeal succeeds, then the interlocutory injunction awarded will be removed and the Respondent will be at liberty to re-capture the motor vehicle in question. In other words, the subject of the intended appeal will still be alive at the end of the appeal and as such there is no substantial loss that will be suffered by the Applicant.
  2. Lastly on the issue of security of costs, the Petitioner submitted that the Applicant has not intimated any security they are willing to avail so as to enjoy stay. This court ought to consider the interests of the Petitioner who successfully showed that the deserved an interlocutory injunction. It should not be lost on the court that the requirement for security for costs is a statutory consideration of the successful litigant who might be unjustly treated by stay orders. Under this requirement the court is aptly reminded that the Petitioner just like the Applicant deserves justice and ought to enjoy the fruits of their successful litigation.
  3. The Petitioner submitted that the Applicant does not deserve to enjoy this court’s discretion since they have approached the court with unclean hands in the form of disobeying of court orders.
  4. This court through its Ruling delivered on 31st October 2024, in the presence of all the parties directed the unconditional removal of the Petitioner's motor vehicle. After which the Petitioner, as noted in the Replying Affidavit deponed on the 20th November 2024 presented himself for the execution of the said ruling but to no avail. The Petitioner through his advocates on record wrote to the Applicant three times via email and the letters requesting for compliance of the court orders but the Applicant willfully disobeyed the said court orders.
  5. The Applicant has now approached this court seeking a discretion relief to stay the very Ruling it has blatantly ignored. This behavior especially from a government institution entrusted to enforce the law is not only unjust to the Petitioner but is a threat to the rule of law itself. The Petitioner referred to Re Estate of SLA (Baby) [2022] eKLR the court re-affirmed the case of MN-VS-TAN & ANOTHER where the court stated that;

“The appellant has applied to the court for a discretionary relief, yet he   is not ready to obey the orders that he is seeking relief against it. He has therefore come to court with unclean hands. The court cannot exercise discretion in favour of such a litigant who has no respect for the rule of law. [Emphasis added]

  1. The Petitioner further submitted that this court ought not to reward such continuous acts especially from a government entity that is supposed to be the steward of the rule of law and a bastion of constitutional adherence. Further this very application is part of the scheme to circumnavigate the impugned ruling issued by this court since even though this court is rightly empowered to stay its own ruling, the Applicant decided to first ignore the said ruling then later brought this application to validate their willful disobedience. It falls upon this court in these special circumstances to utilize its discretion in favour of justice and constitutionalism by denying the Applicant the stay orders and allow execution of the ruling dated 31st October 2024.

The Petitioner placed reliance on the case of Onesmus Muli Mutua v Cosmas Wambua Mwangangi [2017] eKLR where the court denied to grant stay orders because the Applicant had come to court with unclean hands, the court stated:

'He had not sought to set aside the order of eviction so as to entitle him to re-enter the premises. He has therefore come to court with unclean hands and he is not deserving of the court's exercise of discretion. I find the Applicant has not met the first condition for grant of stay'

  1. Under this limb the Petitioner humbly Submits that this Application has the effect of reversing the Ruling dated 31st October 2024. This argument is augmented on the simple fact that by staying the ruling dated 31st October 2024 pending the hearing and determination of the Intended Appeal, this court would essentially be stripping away the remedial effect that the interlocutory injunction was meant to give.
  2. By issuing stay pending the hearing and determination of the intended appeal, this court would be subjecting the Petitioner to the same irreparable injury that the injunctive order was to remedy. The Petitioner therefore pleads with this court to come to its aid and allow the injunctive order to operate as it should have lest it sit on appeal of its own decision and reverse it by granting the stay prayed for. He relied on the court of appeal decision in Meta Platforms, Inc & another v Samasource Kenya EPZ Limited t/a Sama & 185 others; Central Organization of Trade Unions Kenya & 8 others (Interested Parties) (Civil Application E178 of 2023) [2023] KECA 999 (KLR) (28 July 2023) (Ruling) where the court held that:

The Court of Appeal would be reluctant to grant an application for stay of proceedings if it would cause greater hardship than if the application were refused.

  1. In conclusion, the Petitioner beseeched this court to dismiss the Application dated 7th November 2024 in its entirety.

ANALYSIS AND DETERMINATION

  1. I have considered the application, the response made, and the rival submissions. The sole issue for determination, is whether an order of stay of execution pending intended appeal should be granted.
  2. The legal provision on grant of stay of execution pending appeal is provided for under Order 42 Rule 6(2) of Civil Procedure Rules, 2010, which provides as follows:

“(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 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 orders 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 1st Applicant unless the order is made; and

  1. that the application has been made without unreasonable delay; and

c) 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. 

34.  The three conditions to be fulfilled can therefore be summarized as follows; a) that substantial loss may result to the applicant unless the order is made b) application has been made without unreasonable delay c) security as the court orders for the due performance.

  1. These principles were enunciated in Butt vs Rent Restriction Tribunal [1979] where the Court of Appeal stated what ought to be considered in determining whether to grant or refuse stay of execution pending appeal. The court said that: -
  2. The power of the court to grant or refuse an application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal.
  3. Secondly, the general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judge’s discretion.
  4. Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the applicant at the end of the proceedings.
  5. Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. The court in exercising its powers under Order 42 Rule 4(2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security of costs as ordered will cause the order for stay of execution to lapse.

a) Substantial loss

36.  According to the Applicant, it has a strong arguable appeal with probability of success as the impugned decision is premised on gross misrepresentation of the law and that if an order of stay of execution is not granted, substantial loss may result to the Applicant as the Petitioner will commence execution by pursuing release of the motor vehicle.

  1. If the motor vehicle is released to the Petitioner, the intended Appeal will be rendered nugatory and the Respondent will have been denied its right to be heard on the Appeal.
  2. The motor vehicle was grossly overloaded and it will be against the public interest to allow it back on the road without offloading the excess weight or redistribution of the cargo contrary to the law. Unconditional release of the motor vehicle would result in continued destruction of the road with the sanction of the Court.
  3. In addition, the release of the suit motor vehicle unconditionally as ordered by the Court will amount to destruction of evidence since the motor vehicle will not be compliant at the point of release and that Under Section 17 (2) of the EAVCL Act, when a vehicle is found to be overloaded, the transporter is required to redistribute the weight and thereafter the vehicle is reweighed to confirm whether it is within the required legal limit before it is released. The redistribution of weight requires that a reliever vehicle is provided by the transporter to which the excess weight is offloaded.
  4. The Petitioner’s argument on this condition is that the Applicant has failed to demonstrate the substantial loss it will suffer. In any event, it is the Petitioner who stands to suffer substantial loss that cannot be compensated in any manner whatsoever considering that he purchased the impugned motor vehicle through a bank loan which require regular repayment. Due to the continued detention of the same, the Petitioner does not have any other financial asset to keep up the Ioan repayments opening him up to punitive interests due to default and the possibility of his properties being auctioned to realize the Ioan. Currently, the vehicle is stalled without automobile care and regular servicing, it is kept in open air exposing it to deplorable conditions and worthless of meaningful use in future. Further, the driver of the impugned motor vehicle who was an employee of the Petitioner has been left jobless and currently cannot make ends meet for either himself or his family due to the continued detention of the motor vehicle. The Petitioner has also lost his source of sustenance as the motor vehicle was his source of livelihood and he is struggling to barely stay afloat.
  5. Basically, it’s the Petitioner’s view that by allowing the stay of execution, this court would essentially be stripping away the remedial effect that the interlocutory injunction was meant to give.
  6. This court is called upon to balance the interest of both parties:  That of the Applicant seeking stay to ensure its appeal is not rendered nugatory, and the Petitioner’s interest to enjoy the fruits of his ruling.
  7. What I gather from the Applicant’s arguments is that their complaint is founded on the overload on the Petitioner’s vehicle and that the unconditional release of the same by the court without first having the excess load offloaded will amount to destruction of evidence since the motor vehicle will not be compliant at the point of release. The Applicant has referred to Section 17 (2) of the EAVCL Act which provides that when a vehicle is found to be overloaded, the transporter is required to redistribute the weight and thereafter the vehicle is reweighed to confirm whether it is within the required legal limit before it is released.
  8. The Petitioner has submitted that he presented himself on 6th and 7th November 2024 with a reliever vehicle to ease the 'overload' occasioned by the Respondent knowing that it is part of their procedure for release of any 'overloaded' motor vehicle but the Applicant declined to allow the offload.
  9. From the foregoing, it is clear that both parties are in agreement that any excess load on the suit vehicle has to be offloaded before the release can be done in order that it can be compliant at the point of release. The Petitioner is willing to provide a reliever vehicle for that purpose. This court is of the view that since the overload is the jinx of the dispute herein, the Applicant can offload and retain the overload (if any) for purposes of use in evidence against the Petitioner in the suit.
  10. To balance the interest of both parties in this matter in as far as substantial loss is concerned, it will be prudent that the excess load or overload on the suit vehicle be offloaded in the presence of both parties and preserved as evidence after which the vehicle may be released to the Petitioner pending hearing and determination of the Petition.

b) Unreasonable delay

43.  As to whether the Application has been filed without undue delay, the impugned ruling was delivered on 30th October, 2024. The instant application was filed on 8th November 2024 which was done after about seven days. This court thus finds that this application for stay of execution has been filed without unreasonable delay.

c) Security for costs

44.  As regards deposit of security for costs, this court noted that this is a non-money order being stayed.

45.  The Court must similarly consider the overriding objective and balance the interest of the parties to the suit while considering the issue of security to be offered. The law is that where the Applicant intends to exercise their undoubted right of appeal, and in the event, that they were eventually to succeed, they should not be faced with a situation in which they would find themselves unable to effect their successful appeal. Likewise, the Petitioner who has a favourable order in his favour should not, if the Applicant were eventually to be unsuccessful in their intended appeal, find it difficult or impossible to realize the order. This is the cornerstone of the requirement for security.

46.  The issue of adequacy of security was dealt with by the Court of Appeal in Nduhiu Gitahi vs. Warugongo [1988] KLR 621; 1 KAR 100; [1988-92] 2 KAR 100 where the Court of Appeal expressed itself as follows:

“The process of giving security is one, which arises constantly. So long as the opposite party can be adequately protected, it is right and proper that security should be given in a way, which is least disadvantageous to the party giving the security. It may take many forms. Bank guarantee and payment into court are but two of them. So long as it is adequate, then the form of it is a matter, which is immaterial. In an application for stay pending appeal the court is faced with a situation where judgement has been given. It is subject to appeal. It may be affirmed or it may be set aside. The court is concerned with preserving the rights of both parties pending that appeal. It is not the function of the court to disadvantage the defendant while giving no legitimate advantage to the plaintiffs. It is the duty of the court to hold the ring even-handedly without prejudicing the issue pending the appeal. For that purpose, it matters not whether the plaintiffs are secured in one way rather than another. It would be easier for the defendants or if for any reason they would prefer to provide security by a bank guarantee rather than cash. There is absolutely no reason in principle why they should not do so…The aim of the court in this case was to make sure, in an even-handed manner, that the appeal would not be prejudiced and that the decretal sum would be available if required. The respondent is not entitled, for instance, to make life difficult for the applicant, so as to tempt him into settling the appeal. Nor will either party lose if the sum is actually paid with interest at court rates. Indeed, in this case there is less need to protect the defendant because nearly half the sum will have been paid and the balance was at one stage open to negotiation to reduce it”.

  1. The applicants did state with regard to the issue of security that, they were ready to abide by any conditions that may be imposed by court. The Applicant challenge the ruling delivered on 31st October 2024 on the basis that the unconditional released of the vehicle without first having the excess load offloaded will amount to destruction of evidence since the motor vehicle will not be compliant at the point of release.
  2. In fact, this court feels that the issue of unconditional release of the vehicle could have been appropriately been resolved through review application to this court where the Applicant would have brought to the court’s attention the inadvertent error on the unconditional release and the court would have reviewed the ruling and have the overload offloaded. It is eminently clear that the unconditional release of the motor vehicle without offloading the excess load could, in effectuation allow the vehicle to go with the excess load which is purported to be the Applicant’s issue of contention. Only to this limited extent I do find that the appeal would be rendered nugatory. I agree that it is necessary for the overload on the vehicle to be offloaded in the presence of the Parties and their counsel (if need be), before the vehicle is released.

Disposition

  1. Taking all relevant factors into consideration, and the fact that a court of law ought to aim at doing substantive justice, and  in order not to render the intended appeal illusory, I do order that there be a stay of execution of the ruling delivered on 31st October, 2024 on condition that the overload on the subject motor vehicle should be offloaded in the presence of the Parties and their counsel (if need be) for proper preservation for use in evidence at trial when necessary and thereafter motor vehicle registration No. KDH 471M, be forthwith released to the petitioner.
  2. The costs of this application will be in the cause.

RULING WRITTEN, DATED AND SIGNED AT MACHAKOS THIS 19TH FEBRUARY  2025.

NOEL I. ADAGI

JUDGE

DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 21ST JANUARY  2024

In the presence of :

Mr. Okore.................. for Petitioner

Ms. Njeru........... for Respondent/Applicant

Selina................. Court Assistant

    Harrison Muingie Mulandi VS Kenya National Highways Authority Harrison Muingie Mulandi VS Kenya National Highways Authority