Introduction
1. Before court is a Notice of Motion application dated 13th September, 2024 filed by the applicant seeking the following orders;
a) Spent
b) That the applicant herein be granted leave to file their appeal against the ruling delivered on 7th August, 2024 in Machakos MC ELC No. 35 of 2018
c) Spent
d) That pending the hearing and determination of this appeal there be a stay of execution of the judgment and decree issued on 9th December, 2019 in MC ELC No. 35 of 2018.
e) Spent
f) That pending the hearing and determination of this appeal, this Honourable Court do order a stay of proceedings in MC ELC NO. 35 of 2018.
g) That costs of this application be in the cause.
2. The application is supported by the supporting affidavit sworn by Francis Kissinger Inyangala Mulanda, a director of the applicant on 13th September, 2024. The applicant’s case is that in 2018 they instructed the firm of Owang’ & Associates Advocates to defend them in Machakos CMC ELC No. 35 of 2018 but that the said firm neglected to file necessary pleadings whereof judgment and decree was issued against the applicant on 9th December, 2019.
3. That subsequent to the judgment, vide application dated 5th April, 2022, the respondent sought orders to hold the applicant’s directors personally liable and for them to satisfy the decree. That the applicant made an application before court and sought to set aside judgment and that a ruling in that regard was delivered on 7th August, 2024 dismissing the application with costs. That the directors of the applicants agreed to appeal the ruling whereof they instructed their advocate accordingly, who filed and served a Memorandum of Appeal and applied for certified copies of proceedings for purposes of filing Record of Appeal.
4. The deponent further stated that the application dated 5th April, 2022 was listed for hearing on 9th October, 2024 and that they were apprehensive that if the respondent is allowed to proceed with application to execute against them, their appeal will be rendered nugatory yet they made an arguable appeal with high chances of success. They attached a copy of application dated 5th April, 2022, application dated 13th September, 2024, copies of memorandum of appeal.
5. The application was opposed. Viola Atieno Ocharo, the respondent who filed Replying Affidavit. It was her case that the judgment in Machakos MC ELC No. 35 of 2018 was entered on 26th September, 2019 and hence there has been unreasonable delay of almost 5 years and that she has been denied a chance to enjoy the fruits of her judgment. That the applicant has not lodged appeal against the judgment. Further that the applicant was at all times leading to the judgment represented by the firm of Owang & Ássociates Advocates and that it is the said advocates that filed defence which was considered in the judgment as the court found that it did not raise any triable defence.
6. She stated that the mistakes of the applicant in not instructing an advocate to file appeal should not be visited on her. That the applicant has frustrated execution of judgment by being elusive which led to filing of the application dated 5th April, 2022, which application caused the applicant to wake up. She further stated that the applicant had not demonstrated substantial loss and that their appeal has no triable issues. She agreed that the prayer sought to stay proceedings in MC ELC No. 35 of 2018 has been overtaken by events and that the applicant has not deposited security for the due performance of the judgment. She attached the applicants Memorandum of Appeal and defence before the lower court.
7. The application was canvassed by way of written submissions and on record are submissions filed by the respondent on 6th November, 2024 and submissions filed by the applicant on 8th November, 2024, both of which this court has duly considered.
Analysis and determination
8. The court has carefully considered the application, response thereto and parties’ rival submissions. The issue that arise before this court is whether the applicant has met the threshold for grant of orders of leave to appeal the decision dated 7th August 2024 delivered in Machakos CMC ELC No. 35 of 2018; orders of stay of execution of the judgment and decree in the aforesaid suit and orders of stay of proceedings in the said suit.
9. Order 43 of the Civil Procedure Rules provides for instances where an appeal shall lie as of right and where appeal shall only lie with the leave of court. Order 43 Rule 3 of the Civil Procedure Rules provides that applications for leave to appeal under section 75 of the Civil Procedure Act shall in the first instance be made to the court that made the order sought to be appealed against, either orally at the time the order was made or within fourteen days from the date of such order. Therefore, since the said provisions use the word “shall”, it means that an application for leave to appeal against a decision where an appeal does not lie as of right, must, in the first instance be made before the court that made the order sought to be appealed against and not before the court to which an appeal would lie if leave were to be granted.
10. In this case, the applicant sought for leave to appeal against the decision made on 7th August 2024 in CMC ELC 35 of 2018. The appellant neither attached a copy of the application which was the basis of the decision dated 7th August 2024 nor the said decision. It is not therefore clear whether or not the appellant requires leave to appeal against the decision of 7th August 2024. The applicant attached the Memorandum of appeal filed ELC Appeal No. 43 of 2024 being an appeal against the decision of 7th August 2024. This court has looked at the CTS and indeed the appellant has already filed appeal against the aforesaid decision. The record shows that the appeal was filed on 3rd September 2024. Therefore, there is already a purported appeal challenging the lower court’s decision of 7th August 2024. It is clear however that the applicant did not demonstrate having in the first instance moved the trial court for leave to appeal against its orders of 7th August 2024. It therefore follows that this court has no jurisdiction to hear and determine that prayer for leave to appeal against the order of the lower court made on 7th August 2024. The applicant did not consider it necessary to attach the lower court’s decision dated 7th August 2024 and therefore this court does not have the advantage of knowing the nature of the order sought to be appealed against. In the premises, that prayer is struck out for want of jurisdiction.
11. Order 42 Rule 6 of the Civil Procedure Rules grants this court the jurisdiction to grant stay of execution and stay of proceedings pending appeal and 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 appeal case of 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 subrule (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.
12. Execution is a lawful process and will not be granted merely on the basis that execution is imminent. For an applicant to merit grant of stay of execution, they must file their application without inordinate delay and demonstrate in their application that if stay is not granted, they stand to suffer substantial loss which will render their appeal nugatory. They should also be willing to provide security for the due performance of the decree.
13. In the instant case, the applicant has sought stay of execution of the judgment date 9th December 2019 in Machakos CMC ELC No. 35 of 2018, pending determination of “this appeal”. The applicant did not attach a copy of the judgment delivered by the lower court. Besides, he did not suggest having filed any appeal against the said judgment. The only appeal that has been brought to the attention of this court, upon which the applicant sought leave for is the appeal in regard to the decision of the lower court made on 7th August 2024. The applicant has not demonstrated the existence of substantial loss to be suffered by them if execution proceeds. From the pleadings filed by the parties in the lower court proceedings, it is not in dispute that the applicant sold land to the respondent at a consideration whose payment is not disputed. As there is no pending pending appeal as against judgment which is sought to be stayed, the prayer for stay of execution has no foundation, is baseless and hence cannot be granted and the same is hereby rejected.
14. Stay of execution is different from stay of proceedings in that the threshold for stay of proceedings is higher and more stringent. Parties come to court to access justice without delay as espoused in Article 159 of the Constitution. Therefore unless it will be an injustice to proceed, stay of proceedings ought not be granted.
15. I agree with the position taken by the court in the case of Kenya Wildlife Service v James Mutembei (2019) e KLR, where the court held as follows;
Stay of proceedings should not be confused with stay of execution pending appeal. Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on the right of access to justice, right to be heard without delay, and overall right to fair trial. Therefore, the test for stay of proceedings is high and stringent.
16. In this case, the applicant sought stay of proceedings in Machakos CMC ELC NO. 35 of 2018 pending “hearing and determination of this appeal”. It is not lost on this court that Machakos CMC ELC 35 of 2018 was heard to conclusion and judgment entered on 26th September 2019. That judgment has not been appealed against. In any event, the application to set aside that judgment which is said to have been dismissed was filed on 25th January 2024 before the lower court; which is a period of over four years. Besides, the fact that the applicant received consideration from the respondent in the purchase of land from the applicant, was not disputed in the applicant's defence in the lower court. I do not think that equity and justice would look favourably on a person who receives money from another on account of sale of land, but is unwilling to either refund the money or hand over vacant possession to the purchaser. In this case, it is apparent that the applicant is not willing to take any of the above options but wants the court to assist them. This court is a court of law, equity and justice and it will not assist a party to frustrate the course of justice which the applicant herein is intend on doing. In short, applying the test of whether or not the applicant deserves stay of proceedings having considered the right to access to justice and expeditious trial provided for under Articles 48 and 159 of the Constitution, it is the considered opinion of this court that the applicant has not met that stringent test and therefore their prayer for stay of proceedings is rejected.
17. In the end, I find no merit in the notice of motion dated 13th September 2024, which I hereby dismiss with costs to the respondent.
18. It is so ordered.
DATED, SIGNED AND DELIVERED AT KAKAMEGA VIRTUALLY THIS 12TH DAY OF MARCH, 2025 THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM
In the presence of;
No appearance for the applicant
Mr. Makori for the Respondent
Court Assistant: Godwin