RULING
1. This ruling is in respect of the chamber summons application dated 16th August 2024 seeking orders of stay of execution of the ruling delivered by this court on 25th July 2024.
2. The application is stated to be brought under Rule 3 of the High Court (Practice & Procedure Rules), Order 42 Rule 6 of the Civil Procedure Rules (CPR) and Sections 1A, 1B, 3A of the Civil Procedure Act (CPA).
3. The application is premised on the grounds on its face and the supporting affidavit of Samuel Kondogut. The gist of the application is that the ruling delivered by this court on 25th July 2024 aggrieved the plaintiffs who have since lodged an appeal to challenge the same. Terming their intended appeal arguable and one that would be rendered nugatory should the orders of stay be denied, they urge the court to allow the application as the applicants stand to suffer irreparable loss and prejudice. It is stated that the application has been brought without unreasonable delay.
4. The respondent opposed the application vide the grounds of opposition dated 16th September, 2024. He contends that the orders sought to be stayed are negative in nature and thus incapable of being executed and terms the application fatally detective and frivolous as it does not satisfy the prerequisites set out in Order 42 Rule 6 of the Civil Procedure Rules.
5. The respondent further states that this court became functus officio after dismissing the application dated 7th May 2024 and can therefore not exercise appellate jurisdiction over its own decision. It is their contention that the application amounts to an appeal as the applicant is asking this court to sit as an appeal court over its ruling delivered on 25th July 2024. Further, that the affidavit supporting the application is fatally defective and incompetent as there is no proof of authority given to Samuel Kondogut to swear the affidavit on behalf of the three other applicants; that there is no proper appeal that has been properly admitted/filed presented before this court to warrant the orders sought.
6. Pursuant to the directions given on 17th September 2024, the application was disposed off by way of written submissions.
SUBMISSIONS
Applicants’ submissions
7. In their submissions dated 23rd September 2024, the applicants gave a background of the application and identified the following issues for determination;
1. Whether the applicants are entitled to the orders sought for stay of execution?
2. Whether the applicants’ application dated 16th August 2024 is competent?
8. On the first issue, it is submitted that the application for stay meets the criteria as set out under Order 42 Rule 6 of the Civil Procedure Rules. On substantial loss, it is submitted that the applicants will suffer substantial loss and prejudice as the respondent who has judgement in his favour, is at liberty to claim, utilize and evict the applicants from the suit property. On undue delay, it is submitted that there was no delay in filing the instant application, the same having being filed only twenty-five (25) days after delivery of the ruling; that the applicants have expressed willingness to comply with any terms set by this court in granting the stay of execution orders. They relied on the following cases; Peter Mkupang Lowar v Nautu Lowar (2022) eKLR, Jaber Mohsen Ali v Priscillah Boit & Another (2014) and Jemaiyo SO (MINOR SUING THROUGH SOO) Civil Appeal 186 of 2022 (2023) KEHC 20434 (KLR) (17 JULY 2023).
9. On whether the application is incompetent for lack of proof of authority to swear on behalf of the other three applicants, it is submitted that lack of authority should not render the application incompetent and the applicants urge the court to be guided by Article 159 (2) (d) of the Constitution. It is further submitted that an appeal is a distinct legal process and that the instant application only seeks to preserve the status quo and safeguard the applicants’ rights pending hearing and determination of their appeal. They relied on the case of RWW v EKW (2019) eklr.
Respondent’s submissions
10. In their submissions dated 27th September 2024, the respondents also gave a background of the matter and identified the following as the issues for determination;
(i) Whether the application is competent?
(ii) Whether the court can grant stay of execution orders of the ruling delivered on 8th July 2024.
11. On the first issue, the respondents submitted that the 1st, 2nd and 4th applicants did not execute and or sign any authority to mandate the 3rd applicant swear the supporting affidavit and or otherwise act on their behalf in accordance with Order 1 Rule 13 (2) and Order 4 Rule 1 (3) of the Civil Procedure Rules making the suit filed by and on behalf of the 1st, 2nd and 4th plaintiffs fatally incompetent. They relied on the cases of Andrew Ireri Njeru v Embu Ndiirii Proposed Society Chairman & others v Daniel Ngang Kangi & another (2015) eklr and Research International East Africa Limited v Julius Arisi & 213 others 2007 eKLR.
12. On the second issue, it is submitted that a stay of execution order cannot be granted as there is nothing to stay because the orders issued on the 25th July 2024 were negative in nature. This is due to the fact that the impugned ruling did not render any party with an enforceable right but dismissed the aforesaid application. It is submitted that upon the application dated 7th May 2024 being dismissed, parties’ status quo returned ante judgment To buttress their point, they relied on the cases of Catherine Njeri Maranga v Serah Chege & Another (2017) eklr, Shade Manufacturers and Hotel Limited v Serah Mweru Mutuu & 3 others (2018) eklr, Daniel Lomagul Kandei & 2 others v Kamanga Holdings Limited & 40 others (2017), Co-operative Bank of Kenya Limited v Banking Insurance & Finance Union (Kenya) (2015) eklr, Shade Manufacturers and Hotel Limited v Serah Mweru Mutuu & 3 others (2018) eklr and Kaushik Panchamatia & 3 others v Prime Bank Limited & Another (2020).
13. It is further submitted that the application is premature; that no appeal currently exists as the memorandum of appeal attached is yet to be filed and there is no notice of appeal to warrant the orders sought. They urge the court to dismiss the application.
Analysis and Determination.
14. I have carefully considered the application, the response thereto and the submissions by the respective parties and find the issue for determination to be whether the ruling dated 25th July 2024 can be stayed pending appeal.
15. After judgment was delivered in this matter on 18th March 2024, the applicants filed an application dated 7th May 2024 seeking stay of execution orders. A ruling was delivered by this court on 25th July 2024 dismissing the aforesaid application with costs to the respondents. The current application seeks orders to stay the ruling delivered on 25th July, 2024. From the submissions filed by the applicants, it is clear that the applicants are aggrieved by the manner in which this court exercised its discretion vested in it to grant or refuse an application for stay of execution of a judgement pending appeal. It is clear from the applicants’ submissions, that they are challenging the merits of the decision of the court in refusing to allow their application. Given that the applicants are challenging the manner in which this court exercised its discretionary power vested in it of allowing or disallowing applications for stay of execution, a question of law arises to wit, whether this court has jurisdiction to revisit its decision, made on merit, with a view of reversing it.
16. In answering that question, I rely on the case of ICEA Lion General Insurance Co. Ltd v. Julius Nyaga Chomba (2020) e KLR where the court stated;
“A court is functus officio when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. The proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling on adjudication must be taken to a higher court if that right is available.”
and
the case of Brian Muchiri Waihenya v. Jubilee Hauliers Ltd & another; Geminia Insurance Co. Ltd (Interested Party) (2018) e KLR where the court held: -
“Once a court has determined a case to finality and has performed all its duties, it cannot review or alter its judgment and any challenge thereto must be taken up by the higher court, the Court of Appeal, in this matter. I do not think that this court’s inherent jurisdiction under section 1A, 1B and 3A of the Civil Procedure Act can save the situation as presented by the applicant”
17. Having determined that this court lacks jurisdiction to hear and determine the issues raised in the instant application and cognizant of the fact that jurisdiction is everything and that without it a court cannot make a further step, I down my tools.
18. The upshot of the foregoing determination is that the application has no merits. Consequently, I dismiss it with costs to the respondent.
19. Orders accordingly.
Dated, signed and delivered, at Iten this 4th day of December 2024.
Ruling delivered virtually in the presence of:-
Mr. Chemoyai for the applicants
Mr. Kipruto holding brief for Ms. Adeyo for the respondents
Court Assistant: Alex