MWATHETHE ADAMSON KADENGE VS TWAHER ABDULKARIM MOHAMED AND MASHA SUDI

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MALINDI

ELECTION PETITION APPEAL NO. 3 OF 2018

MWATHETHE ADAMSON KADENGE …………………………………..…...…APPELLANT

VERSUS

TWAHER ABDULKARIM MOHAMED ……………………………………1^st RESPONDENT

INDEPENDENT ELECTORAL AND

BOUNDARIES COMMISSION (IEBC) ……………………..………………2^nd RESPONDENT

MASHA SUDI …………………...……………….……………………………3^rd RESPONDENT

RULING

1. By an Application dated 14.11.23 the 1^st Respondent seeks orders that:
2. This Honourable Court do stay the execution of the decree in respect of the costs of the appeal herein pending the hearing and determination of the 1^st Respondent’s Notice of Motion Application dated 25^th October, 2023 in High Court Election Appeal No. 154 of 2013 Twaher Abdulkarim Mohamed-vs-Mwathethe Adamson Kadenge & 2 Others.
3. This Honourable Court do lift the warrants of arrest issued herein against the 1^st Respondent Twaher Abdulkarim Mohamed. 
4. This Honourable Court do order that the costs herein payable to the Appellant Mwathethe Adamson Kadenge be offset against the costs payable by him to the 1^st Respondent Twaher Abdulkarim Mohamed in High Court Election Appeal No. 154 of 2013 Twaher Abdulkarim Mohamed –vs- Mwathethe Adamson Kadenge & 2 Others.
5. In the alternative to prayer 4 above, this Honourable Court do direct that the 1^st Respondent do settle the decree herein by installments of Kshs. 50,000/= per month until payment in full. 
6. Costs of the application be awarded to the applicant.

1. The grounds upon which the Application is premised are that the Deputy Registrar of this Court has issued a warrant of arrest against the 1^st Respondent, who is the current member of the Kilifi County Assembly for Shella Ward for having failed to settle the costs awarded to the Appellant, the immediate former Member of the County Assembly for the said Ward, amounting to Kshs. 731,352.60/=; that while the Appellant seeks to execute for the said costs, he is yet to settle his own costs awarded to the 1^st Respondent in High Court Election Appeal No. 154 of 2013 awarded on 10.6.14; that the Deputy Registrar of the Court of Appeal assessed the costs in High Court Election Appeal No. 154 of 2013 at Kshs. 316,050/= on 23.6.16; that the said costs plus the interest which has accrued at 14% from 10.6.14 amount to Kshs. 732,735/= which is enough  to off-set the costs herein; that Order 22 Rules 1(1)(c) ,19(2), 22(1) and 25 of the Civil Procedure Rules give this Court the discretion to grant the orders sought herein; that in the alternative to the above, Order 21 Rule 12(2) of the Civil Procedure Rules gives this Court power to order settlement of a money decree by installments; that the 1^st Respondent is an Honourable Member of the Kilifi County Assembly and has not refused to pay the costs but wants to settle the same in the manner proposed in this Application which is just and fair; that considering his salary and the commitments to his family and the people he serves in Shella Ward, it would be extremely harsh and demeaning if he was to be arrested and committed in civil jail. The 1^st Respondent urged that it is in the interest of justice that this Application be granted as prayed.  
2. In opposition to the Application, the Appellant filed a replying sworn on 26.2.24. He averred that the 1^st Respondent has failed to disclose to this Court that High Court Election Appeal No. 154 of 2013 forms part of a series of election dispute proceedings involving both parties which were decided in his favour pending costs; that in CMCC Elc Petition 7 of 2017 Twaher Abdulkarim Mohamed v Independent Electoral and Boundaries Commission (IEBC), Masha Sudi & Mwathethe Adamson Kadenge, he was awarded costs of Kshs. 500,000/=; that in HCC Elc Petition No. 1 of 2014 Twaher Abdulkarim Mohammed v Mwathethe Adamson Kadenge & 2 Others costs were taxed in his favour at Kshs. 3,526,503.30/=; that in Civil Appeal No. 45 of 2015 Twaher Abdulkarim Mohammed v Mwathethe Adamson Kadenge & 2 Others, costs were also awarded to him.
3. The Appellant went on to add the bill of costs and taxation notices were served upon the 1^st Respondent’s advocates and the same were unopposed; that rather than file a reference the Applicant’s Advocates filed submissions without any directions; that the notice to show cause was filed after the 1^st Respondent refused to settle the taxed costs in spite of service of the notice of taxation; that the warrants for the arrest of the 1^st Respondent that have not been executed by Malindi Police Station OCS Mr Noor despite service.  
4. The Appellant further averred that the Certificate of Costs in High Court Election Appeal No. 154 of 2013 has never been served upon him nor has the Applicant ever approached him or his advocates on the issue of settlement of costs herein in any other matter regarding the election petitions; that from the amounts awarded to him, the issue of set-off is absurd and the proposal equally so.
5. He concluded that the 1^st Respondent had not established sufficient grounds for stay of the execution of the Court’s orders and that the Application is an afterthought and intended to frustrate recovery of the advocate fees awarded to him. 
6. Directions were given for the filing of submissions. Although the counsel for the parties stated that they had filed submissions, none was in the file and the Court directed counsel to avail hard copies of the same. At the time of writing this ruling, the submissions were still not in the Court file. In the premises, the Court proceeded to write the ruling without the benefit of submissions.
7. The 1^st Respondent seeks stay of execution of the decree in respect of the costs of the appeal herein pending the hearing and determination of his Application dated 25.10.23 in High Court Election Appeal No. 154 of 2013 Twaher Abdulkarim Mohamed-vs-Mwathethe Adamson Kadenge & 2 Others. He also seeks that the costs herein payable to the Appellant herein be offset against the costs payable to him by the Appellant in High Court Election Appeal No. 154 of 2013. He also seeks that the lifting the warrants of arrest issued against him.
8. The 1^st Respondent relied on Order 19(2) of the Civil Procedure Rules. Rule 19 provides:
9. Where the person to whom notice is issued under rule 18 does not appear or does not show cause to the satisfaction of the court why the decree should not be executed, the court shall order the decree to be executed.
10. Where such person offers any objection to the execution of the decree, the Court shall consider such objection and make such order as it thinks fit.
11. The notice referred to in Rule 18 is a notice to show cause against execution. What is before this Court is not a notice to show cause. That has already been dealt with. It is the resultant warrants of arrest that have provoked the present Application.  In the premises, the cited Rule is not applicable herein.
12. The Application is also expressed to be brought under Order 22 Rule 22(1) of the Civil Procedure Rules which provides:

The court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay the execution of such decree for a reasonable time to enable the judgment-debtor to apply to the court by which the decree was passed, or to any court having appellate jurisdiction in respect of the decree or the execution thereof, for an order to stay the execution, or for any other order relating to the decree or execution which might have been made by the court of first instance, or appellate court if execution has been issued thereby, or if application for execution has been made thereto.

1. Under Rule 22(1) this Court has the discretion to grant stay of execution upon sufficient cause being shown. The Court of Appeal set out the factors to be considered in an application for stay of execution pending appeal in the Butt v Rent Restriction Tribunal [1982] KLR 417, as follows:

1. The power of the court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.

2.  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 that appeal court reverse the judge’s discretion.

3.  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.

4.  The court in exercising its discretion whether to grant [or] refuse an application for stay will consider the special circumstances of the case and unique requirements.  The special circumstances in this case were that there was a large amount of rent in dispute and the appellant had an undoubted right of appeal.

5.  The court in exercising its powers under Order XLI 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 for costs as ordered will cause the order for stay of execution to lapse.

1. The reasons proffered by the 1^st Respondent for seeking stay is that his salary is committed to his family and the people he serves in Shella Ward as the Member of County Assembly and that it would be extremely harsh and demeaning if he was to be arrested and committed in civil jail. The 1^st Respondent has not disclosed to this Court the salary he earns as a Member of the County Assembly. He has not given any details of his family and the financial needs thereof nor has he demonstrated his financial commitments to the residents of Shella Ward whom he represents. 
2. It is well settled that an order for stay of execution is first and foremost discretionary. It is an equitable remedy and not a right of a party. In the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR, the Supreme Court stated that extension of time is not a right of a party but an equitable remedy that is only available to a deserving party at the discretion of the Court. By parity of reasoning, stay of execution being an equitable remedy may only be granted to a deserving party.  Without providing any details of his salary, family circumstances, and financial obligations to the people of Shella Ward, the Court is not persuaded that sufficient cause as contemplated under Order 22 Rule 22(1) of the Civil Procedure Rules, exists, to warrant stay of execution. Noting that the amount owed is not disputed, I accordingly find that the 1^st Respondent has not placed any material before the Court to demonstrate that he is deserving of the orders sought for stay of execution of the decree or lifting of the warrants for his arrest.
3. I have looked at the application dated 25.10.23 and note that the 1^st Respondent seeks that the certificate of costs dated 16.10.23 be deemed to be a decree of the Court. The 1^st Respondent has not stated why the Application has not been heard or whether it has a hearing date. Further Election Appeal No 154 of 2013 is a different cause from that herein and save from the parties being the same, the 2 matters are unrelated. The proper procedure would be for that application to proceed to its logical conclusion, whereupon the 1^st Respondent will be at liberty to execute the decree. It is for this reason that the prayer for set off cannot also be granted. 

1. As noted herein, the 1^st Respondent has not disputed the amount in the decree. He however seeks in the alternative that he be allowed to settle the decree by installments of Kshs. 50,000/= per month until payment in full.  He relied on Order 21 Rule 12(2) of the Civil Procedure Rules which provides:

After passing of any such judgment or decree, the court may on the application of the judgment-debtor and with the consent of the decree-holder or without the consent of the decree-holder for sufficient cause shown, order that the payment of the amount decreed be postponed or be made by instalments on such terms as to the payment of interest, the attachment of the property of the judgment-debtor or the taking of security from him, or otherwise, as it thinks fit.

1. Where an applicant seeks to make payment of the decreed amount in instalments, the Court may grant such order. The order may however only be granted with the consent of the decree-holder.  If such consent is not forthcoming, as in the case herein, the order may be granted for sufficient cause. As indicated earlier, other than general statements alluded to herein the 1^st Respondent has not placed any material before the Court to demonstrate his financial commitments to justify payment of the decreed amount in instalments. Sufficient cause has thus not been shown. The prayer is accordingly rejected. 
2. In the end and for the foregoing reasons, the Court finds that the Application dated 14.11.23 lacks merit and is dismissed with costs to the Appellant.

DATED, SIGNED and DELIVERED in MALINDI this 8^th day of November 2024

___________________________

M. THANDE 

JUDGE