SNR. PASTOR REV,SAMSON VITAL BEN OMONGE VS BISHOP SYLUS SAMWEL OCHIENG AND TRUSTEES OF LIFE CELEBRATION MINISTRIES

RULING
1. On 5th March 2025 the Appellant filed the instant appeal. Simultaneous with it he filed the instant application, dated 03/03/2025. He brought it under certificate of urgency. When the application was placed before the Court, the learned Judge could not make or tail, based on the pleadings, whether the Appellant had sought similar orders in the trial court before moving the Court or not. Thus, the Court directed that the parties address it on the issue by way of oral submissions.
SUBMISSIONS
2. Learned counsel for the Appellant submitted that when the trial court delivered the judgment on 06/02/2025, the appellant sought and was granted a stay of execution for thirty 30 days. Then he lodged an appeal on 28th February 2025. Further, the Appellant did not make similar or formal application because he had made one orally. It is not in dispute that it was an oral one. It was only limited for thirty (30) days. Further, that he made it because the appeal was not yet filed and he understood that the period for appealing is 30 days. Thus, he applied for the stay of execution for that period. Lastly, that in his view, one can apply for stay of execution either in the same court appealed from or one appealed to.
3. The Respondent submitted that Order 42 Rule 6 provides that an application of this nature be made to the High Court (understood to mean also the Environment and Land Court or the Employment and Labour Relations Court for that matter as courts of Equal Status) is made when the lower court has denied it. In particular, Rule 6(6) is that the High Court should be acting in its appellate jurisdiction. The lower court should have considered the application and denied it.
4. He contended that the oral application made in the trial Court by the appellant now was not made in terms of Order 42 of the Civil Procedure Rules. Further, as the position was currently the lower court had not denied the application. He argued that the first point of call in regard to the application should have been the lower court.
ISSUE, ANALYSIS AND DETERMINATION
5. This Court has considered the application, the law and the rival submissions on the issue. The only matter for consideration before this Court is whether the application is properly before me by virtue of the provisions of Order 42 Rule 6 of the Civil Procedure Rules. The attendant other issue is who to bear the costs of the application.
6. One is whether the Application is incompetent and premature, two, whether the Application is merited, and three, who to bear the costs of the Application.
7. Regarding the first issue, the Applicant argued that he made an oral application before the trial court and was granted a stay of execution of the judgment for 30 days. Further, that for that reason he had satisfied the requirements of Order 42 Rule 6 of the Civil Procedure Rules. On his part, the Respondent argued that the Applicant had not complied with Order 62 Rule 6 of the Civil Procedure Rules by first seeking the orders he sought herein in the trial Court. That the first point of call for the applicant should have been the trial court and if the application was denied then he approaches this Court. The Respondent opined that the applicant having failed to do so, the instant application was incompetent, premature and bad in law. They submitted as much.
8. This turns the Court to give due consideration to the provisions and import of Order 42 Rule 6 of the Civil Procedure Rules. This is against the backdrop that the instant Application being in relation to an Appeal preferred against a decision of a subordinate court, the rules on stay of execution or proceedings are those under the Civil Procedure Act, Chapter 21 of the Laws of Kenya. These are the Civil Procedure Rules, 2010 as amended in 2020. The relevant provisions therein, regarding the steps parties take upon lodging appeals are Order 42 of the Rules.
9. In particular, Order 42 Rule 6(1) provides that
“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 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.”
10. The Rule, as applied to the facts of the instant application, should be given a plain or grammatical interpretation of the text, unless there is an ambiguity in them. If there is ambiguity then the Court would resort to other methods of statutory interpretation. To make a finding as to whether there is ambiguity or not, this court has carefully analyzed the text of the provision. It has, for reason of emphasis, underlined the relevant phrases in the provision in relation to the instant Application.
11. In my humble view, the Rule quoted above verbatim, when interpreted in both in the letter and spirit thereof, means that before a party aggrieved by an order or decree of a subordinate Court appeals and moves the Appellate Court either on a first appeal (where the appeal is first) or on a second appeal (where the appeal is preferred as a second one in case there was an earlier one to a Court subordinate to the Superior Court) for stay of execution (or proceedings for that matter), he/she/it should have moved the court appealed from for similar orders, and the said lower court should have determined the application. If the trial court denies the application or allows it on conditions the aggrieved party opines that they are not acceptable to him/her he applies to the appellate court for setting aside the decision or order of the trial court.
12. This step or process explained in the preceding paragraph is not optional: it compulsory. Only upon fulfilment of that step can the superior court be seized of jurisdiction to handle an application for stay of proceedings or execution. This is clearly provided for in the sub-Rule that “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.”
13. The clear import of the provision is that an Appellant can only apply to the Appellate Court to set aside the order (of stay of execution or proceedings) of the Court appealed from if he/she/it is aggrieved by such an order. It means further that he/she/it or the adverse party must have moved the subordinate Court, the Court shall have rendered itself on the application, and the party is aggrieved by the decision of that Court and moves the Appellate Court. An appellant ought not and should never side-step the subordinate court and attempt successfully to move the appellant for orders he/she should have sought formally in that court. This is akin to forum shopping and a direct call for a breakdown of the rule of law. Laws are enacted for the proper ordering of and to avoid arbitrariness in actions of people in society. While rules of procedure are not to be mistresses to stress and commandeer or constrain free moral agents of reason they were designed for orderliness, fairness and justice. It would be a dark day for judges and judicial officers to encourage infractions of the law which they took oath to uphold.
14. Thus, in NICHOLAS KIPTOO ARAP KORIR SALAT VS. INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION & 6 OTHERS [2013] EKLR Kiage JA of the Court of Appeal held:
“I am not in the least persuaded that Article 159 of the Constitution and the oxygen principles which both command courts to seek to do substantial justice in an efficient, proportionate and cost-effective manner and to eschew defeatist technicalities were ever meant to aid in the overthrow or destruction of rules of procedure and to create an anarchical free-for-all in the administration of justice. This Court, indeed all courts, must never provide succour and cover to parties who exhibit scant respect for rules and timelines. Those rules and timelines serve to make the process of judicial adjudication and determination fair, just, certain and even-handed. Courts cannot aid in the bending or circumventing of rules and a shifting of goal posts for, while it may seem to aid one side, it unfairly harms the innocent party who strives to abide by the rules. I apprehend that it is in the even-handed and dispassionate application of rules that courts give assurance that there is clear method in the manner in which things are done so that outcomes can be anticipated with a measure of confidence, certainty and clarity where issues of rules and their application are concerned.”
15. From the above excerpt, it is clear that both substantive and procedural laws and indeed any other that is constitutional ought to be followed by all and sundry within the republic. Thus, in regard to compliance with Order 42 Rule 6(1) of the Civil Procedure Rules, the learned judge in VIPINGO RIDGE LIMITED V SWALEHE NGONGE MPITTA [2021] EKLR held:-
“A plain reading of the provision requires that before an Applicant seeking stay pending appeal moves the appellate court for stay orders, he/she must first have applied for the orders before the trial court. And there must be evidence that the trial court pronounced itself on the application whether it granted or declined to grant it.
12. It appears to me therefore that it would be irregular for such applicant to move the appellate court without first approaching the trial court on the matter and the trial court pronouncing itself on it one way or the other.”
16. Also, in PIUS MBITHI & ANOTHER V DANIEL MUTIRIA & ANOTHER [2017] EKLR, it was held,
“I read and understand the rule to dictate that the first port of call by an application for stay pending appeal is the trial court and that once it considers and determines the application then an aggrieved party has the liberty to approach this court and have the orders so issued set aside. 17. Put in the context of the matter before me it is clear that the trial court has not been afforded the opportunity to hear and determine any application for stay.  That being the position, and being a court of law applying the law as enacted, this court must tell the applicant that the law is for all to be observed and not be side-stepped.  I am in no doubt that the application seeking stay before this court as the appellate court is prematurely made and does not lie.”
17. Additionally, in MWANGI V MOKAYA (ENVIRONMENT AND LAND APPEAL 17 OF 2022) [2022] KEELC 14835 (KLR) (17 NOVEMBER 2022) (RULING) this Court held that
“A plain grammatical or textual reading of this terminology reading of the text above, particularly, the underlined phrase is to the effect that a party is not permitted to skip the most important point as the first point of call: the respective trial magistrate or judge against whose order or judgment an appeal is preferred. After he or she has moved the Court and his Application is granted or not, depending on how he views the decision, then he/she will file another application in the Court appealed to. It is upon this step having been taken that the application for stay of proceedings in the trial can be considered by the appellate Court. Absent of this step, the application filed for stay of execution or proceedings directly to the appealed to is improper.”
18. In the instant Application, it has not been denied or even submitted on to the contrary that the Appellant did not formally move the trial court first for its determination on whether or not it was to grant an order of stay of enforcement of the orders of the trial court as made on 06/02/2025. To be clear, since the appellant submitted that he had fulfilled the conditions of Order 42 of the Rules by seeking a stay of execution in the trial court and it was granted for 30 days, he wished to convince the Court that he was applying to set aside the order granted. It made the Court to ask itself in indeed the wording of the prayers in the application were of that nature, and also why then he had to move this Court the last minute given that he filed the instant application on 6th March, 2025 – basically on the last day of the period given by the court. This Court had therefore look at the record of the trial Court. This is how it reads, before Hon. N. Wairimu SPM on 06/02/2025.
“Judgment delivered this 6/2/2025 in the presence of,
Brian Otieno for Defendant
Ogwe for the Plaintiff
signed
Ogwe, we seek 30 days stay.
Otieno, No objection
Court: 30 days stay of execution is hereby granted.”
Signed
19. From the above proceedings, it is clear to me that it was the Plaintiff who sought and limited himself to orders of stay of execution for 30 days. Further, the stay of execution for 30 days was arrived by the consent of the parties. Therefore, the legal conditions for setting aside a consent order or judgment came into play immediately.
20. In of Flora N. Wasike v Destimo Wamboko[1988] eKLR Hancox JA (as he then was) stated:
“It is now settled law that a consent judgment or order has contractual effect and can only be set side on grounds which would justify setting a contract aside, or if certain conditions remain to be fulfilled, which are not carried out: see the decision of this court in J M Mwakio v Kenya Commercial Bank Ltd Civil Appeals 28 of 1982 and 69 of 1983. In Purcell v F C Trigell Ltd [1970] 2 All ER 671, Winn LJ said at 676;“It seems to me that, if a consent order is to be set aside, it can really only be set aside on grounds which would justify the setting aside of a contract entered into with knowledge of the material matters by legally competent persons, and I see no suggestion here that any matter that occurred would justify the setting aside or rectification of this order looked at as a contract.”
21. The Applicant has not applied to set aside the consent he himself engineered by praying for it. Be that as it may, he could only apply to set it aside if he brought himself within the parameters of a setting aside a contract, for instance, if there was fraud, breach misrepresentation and the like. If his contention that the stay of execution granted upon the oral application he made was intended to be challenged in or varied by this Court he should have stated as much in the proceedings that led to it. Even then he should have filed an appeal by that time and predicated the outcome of the oral application on its existence and outcome. Having not done so, it means that the instant Application was made contrary to the requirements of Order 42 Rule 6(1) of the Civil Procedure Rules. It means further that as the Respondent argued, the Application is premature, incompetent and bad in law.
22. The upshot is that this Court need not consider the merits or otherwise of an Application that is incurably defectively incompetent. The Court can do no more than to strike it out with costs to the Respondents.
23. The Appellant to file the decree within the next fourteen days in terms of Order 42 Rules 2 and 11 of the Civil Procedure Rules.
24. Orders accordingly.