ROSE WANGUI MAMBO & 2 OTHERS VS LIMURU COUNTRY CLUB & 16 OTHERS

   REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

                                   MILIMANI LAW COURTS

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

  PETITION NO. 160 OF 2013

ROSE WANGUI MAMBO……………………..1^ST PETITIONER

MARTHA WANJIRU VINCENT………….…..2^ND PETITIONER

CAROLINE WANGARI NGUGI……………..3^RD PETITIONER

                                              VERSUS

LIMURU COUNTY CLUB……………….......1^ST RESPONDENT

YASSIN AWALE………………………..……2^ND RESPONDENT

ROBERT BARUA…………..……………....3^RD RESPONDENT

PETER MUNGAI……………………….…..4^TH RESPONDENT

ERICK KIMURI……………………….…….5^TH RESPONDENT

KAGOCHI MUTERO…………………..…..6^TH RESPONDENT

VICTOR GICHURU……………….………..7^TH RESPONDENT

ANTHONY WANGARI………………….…8^TH RESPONDENT

TOM WAIHARO……..…………………....9^TH RESPONDENT

ATTORNEY GENERAL……………….……10^TH RESPONDENT

ALFRED KARIUKI, FRANCIS OKWARA, PETER WARUI (Sued on behalf of the Kenya Golf Union)……………………………...11^TH TO 13^TH RESPONDENTS

DORCAS MBALANYA, ANASTACIA CHUBI.JOYCE WAFULA (Sued on behalf of the Kenya Ladies Golf Union)……………………………..14^TH TO 16^TH RESPONDENTS

NATIONAL GENDER AND EQUALITY COMMISSION…………………………........17^TH RESPONDENT

                                        RULING

1. This ruling disposes two applications, dated 8^th November 2020 and 18^th January 2021, the first and second applications, respectively.
2. The first application is brought by the 2^nd to 9^th respondents (the respondents) and seeks leave to appeal against the ruling of this Court (Makau J) dated 12^th November on a reference from the decision of the taxing officer on the petitioners’ party and party costs. The party and party Bill of costs had been taxed and allowed at Kshs. 4,911,791.
3. In the impugned ruling, the Court reduced the taxed costs by Kshs. 500,000 to Kshs. 4,411,991, which the respondents now want to challenge in the Court of Appeal.
4. On the other hand, the 2^nd and 3^rd petitioners, (the petitioners), filed their own application dated 18^th January 2021, (the second application), seeking security for the allowed costs and interest. They also sought stay of the first application pending deposit of the security or striking out of the first application. 

First Application

1. This is a notice of motion by the respondents seeking leave to appeal against this Court’s ruling delivered on 12^th November 2020 and stay of execution pending the determination of the intended appeal.
2. The respondents being aggrieved by the decision of the taxing officer, filed a reference to this court for review and setting aside of that costs allowed. The Court, (Makau J), delivered a ruling on 12^th November 2020 and reviewed the amount of costs downwards to Kshs. 4,411,791, disallowing Kshs. 500,000. The respondents were still aggrieved and now want to appeal to the Court of Appeal.
3. The respondents, former directors of the 1^st respondent, state that they did not earn an income as employees and the costs awarded against them and the accrued interest violate their rights and property and are financially draining on them.
4. The respondents rely on rule 11(3) of the Advocates Remuneration Order to argue that a party aggrieved by a decision from a reference to a Judge has a right to appeal to the Court of Appeal, though with leave. They contend that their intended appeal is arguable and has a high chance of success and attached a draft memorandum of appeal as demonstrating this fact.
5. The respondents are apprehensive that if stay of execution is not granted, their intended appeal will be rendered nugatory thereby occasion them an irreparable loss. They take the view, that the Court fell into error when it held that a party’s defence is a factor to be taken into consideration when taxing a Bill of Costs.
6. The respondents assert that the petitioners will not suffer any prejudice if the application is allowed. They are willing to pay to the petitioners a further Kshs. 600,000 as security pending the appeal. This money was said to have already been paid, as at the time of hearing this application.
7. On stay pending appeal, the respondents rely on the decisions in Jane Njeri Wanjiru Kihara v Christopher L. Ajele (Returning Officer–Naivahsa Constituency) & 3 others (Nakuru Election Petition No.2 of 2008) and Martha Wangari Karua v Independent Electoral and Boundaries Commission & 3 others [2019] eKLR for the position that the Court should balance the rights and interests of the parties by requiring the applicant to pay part of the decretal amount.

Response

1. The 1^st and 3^rd petitioners (the petitioners) oppose the application, contending that the respondents had been filing numerous applications and, therefore, the present application is an abuse of court process and against good practice.
2. According to the petitioners, this application is against the principle of finality of suits and expeditious determination of cases. In their view, the application has no merit and should be dismissed.

Second Application

1. The petitioners have their own application dated 18^th January 2021, the second application, seeking security for the decretal sum of Kshs. 5,647,092.48 together with interest. They therefore seek stay of the first application pending depositing the amount.
2. According to the petitioners, the reason for seeking security for the amount is to prevent the respondents’ attempt to frustrate enjoyment of the fruits of the judgment. They state that the respondents had been filing application after application both in this Court, the Court of Appeal and recently in the Supreme Court, where a notice of appeal was filed, to frustrate their effort to realize the fruits of the judgment.
3. The petitioners take the position, that the respondents conduct indicates their unwillingness to honour the order on costs.

Response

1. The respondents oppose the second application, arguing that the application is not only premature but also an abuse of the process of Court. This is because their application (the first application) has not been determined.
2. The respondents add that the second application has been brought in bad faith and ill motive as the petitioners seek to be accorded priority over the first application.
3. It is the respondents’ case that despite their effort to pay a portion of the costs awarded, the petitioners had declined to provide the bank account details for purposes of remitting the money. They rely on the correspondences dated 10^th December 2020 and 5^th February 2021 as evidence of this fact.
4. The respondents rely on Sango Bay Estates Ltd and others v Dresdner Bank AG (1971) EA 17 for the position that leave to appeal from an order in civil proceedings will normally be granted where prima facie it appears that the grounds of appeal merit serious judicial consideration.
5. Reliance is also placed on other decisions, namely; Rene Dol v Official Receiver of Uganda [1954] 21(1) EACA 116; Muhamed Yakub & Another v Mrs Badur Nasa Civil Application No. Nai. 285 of 1999; and Machira T/A Machira & Company Advocates v Mwangi & Another [2002] 2 KLR 391.

Determination

1. As already stated at the beginning of this ruling, there are two applications before this court; one for leave to appeal and the other for security. I will start with the first application.  

First application

1. The first application seeks leave to appeal against the ruling of the Court delivered on 12^th November 2020 on a reference from the decision of the taxing officer on the petitioners’ party and party Bill of costs.
2. The respondents were dissatisfied with the impugned ruling and now want to test the correctness of that ruling in the Court of Appeal.
3. Rule 11(3) of the Advocates Remuneration Order provides that:

Any person aggrieved by the decision of the judge upon any objection referred to such judge under subsection (2) may, with the leave of the judge but not otherwise, appeal to the Court of Appeal.

1. The rule confers on the Court discretion to grant leave to appeal from its decision on a reference. This being a discretionary power, whether or not to grant leave is an exercises of that discretion and, like all other discretions, it must be exercised judiciously.
2. A party applying for leave to appeal to the Court of Appeal should satisfy the Court that the grounds of appeal he intends to be pursued on appeal show, prima facie, an arguable appeal.
3. In Sango Bay Estates Ltd and others v Dresdner Bank AG [1971] EA 17, the Court stated that leave to appeal from an order in civil proceedings will normally be granted where, prima facie, it appears that the grounds of appeal merit serious judicial consideration.
4. Similarly, in British Broadcasting Corporation v Eric Sikujua Ngyimaryo, (Civil Application No. 138 of 2004, (unreported), the Court of Appeal of Tanzania stated:

As a matter of general principle, leave to appeal will be granted where the grounds of appeal raise issues of general importance or a novel point of law or where the grounds show a prima facie case or arguable appeal.

1. When considering an application for leave to appeal, the Court does not go into the merits or deficiencies of the impugned decision, but only determines whether the grounds to be taken up on appeal are plausible and merit for consideration by the Court of Appeal.
2. The respondents argue that they have an arguable appeal to urge in the Court of Appeal. At this stage, therefore, this Court should not concern itself with the merit of the intended appeal, but to be satisfied that the intended appeal is not frivolous.
3. I have perused the grounds in support of the application as well as the supporting affidavit to which a draft memorandum of appeal has been attached. From the memorandum of appeal, the grounds to be taken up on appeal include; that the Court failed to take into account the submission that the taxing officer ignored applicable provisions of the law; that the costs allowed were excessive; and that the petition having been withdrawn by consent, particulars of services rendered as outlined in the Bill of costs were incorrect. 
4. Based on those grounds, this Court is satisfied that they are not frivolous. It is not the duty of this Court to determine whether those grounds will succeed on appeal or not.
5. The respondents also urge the Court to grant stay of execution pending determination of the intended appeal. A Stay of execution is intended to preserve the subject matter in dispute so that the rights of the person exercising the right of appeal are safeguarded, and the appeal is not rendered nugatory.
6. In Kenya Shell Ltd v Kibiru & Another [1986] KLR 410; [1986] eKLR, it was held that in considering an application for stay, the Court must address its collective mind to the question of whether refusing stay would render the appeal nugatory. The Court should balance two parallel propositions, first; that a litigant, if successful, should not be deprived of the fruits of a judgment in his favour without just cause, and secondly; that execution would render the intended appeal nugatory if stay is refused.
7. In this application, the Court has to consider whether the respondents have demonstrated that they will suffer substantial loss if stay is not granted which would in turn, render the intended appeal nugatory. The application must also have been made without delay.
8. There is no doubt that the application was made without delay as it was filed within one month following the delivery of the impugned ruling. That notwithstanding, the respondents have not shown that they will suffer substantial loss if stay is not granted. This is so, because the respondents have not shown that the petitioners will not be in a position to refund the amount of costs allowed if stay is not granted.
9. It is not enough for the respondents to allege that they will suffer substantial loss. They must place before the Court sufficient evidence to show that indeed they will suffer something extra ordinary if stay was to be denied. This, the respondents have failed to do.

Second application

1. The second application seeks security for the costs allowed before the application for leave is heard or granted. The petitioners argue this application has been brought is to prevent the respondents from frustrating their efforts towards realization of the enjoyment of the fruits of the judgment given in their favour. According to the petitioners, the respondents have been filing multiple applications to frustrate this endeavour.
2. The view of this Court, is that having declined to grant stay of execution sought in the first application, there would be no reason to allow this application. There is, therefore, no merit in the second application.

Conclusion

1. In the end, having considered the two applications and rendered myself on them as I have, the first application dated 8^th November 2020 partially succeeds. Leave to appeal against the ruling of this Court delivered on 12^th November 2020 is granted. The prayer for stay of execution is, however, declined.
2. The second application dated 18^th January 2021 for security for the decretal amount of costs is declined and dismissed.
3. Each party will bear their own costs for the two applications.

Dated Signed and Delivered at Nairobi this 19^th Day of                 April 2024

                                            E C MWITA

                                               JUDGE