'1. Before this court is a notice of motion application dated 27th September 2024, seeking the following orders:-
a) Spent;
b) That pending the hearing and determination this application an order of stay of execution do issue restraining the defendant, his agents, servants and/or employees from evicting the plaintiffs from all that property known as number CR 40958/7 sub-division 17235(Original No.13324/4 of Section 1 Mainland North);
c) That the warrant of eviction issued herein dated 11th September,2023 be set aside;
d) That the costs of this application be provided for.
2. The application is premised on the grounds therein and the supporting affidavit of the 1st applicant. She averred that she has at all material times resided on the suit property in furtherance of the intimate relationship she enjoyed with the respondent. On 27th September 2024 at 10 am, the respondent’s agents, Swift Auctioneers, together with police officers from Bamburi Police Station, descended on the suit property and broke open the main gate and main door to the house, asking her to pack and leave.
3. She further stated that the said actions by the respondent are illegal and unlawful as the warrants being executed were issued on 11th September 2023, more than a year, which contravenes Order 22 Rule 18 of the Civil Procedure Rules 2010. This also contravened Order 22, Rule 7(2)(h) of the Civil Procedure Rules and Section 94 of the Civil Procedure Act, as taxation had never been done.
4. She averred that she and her son stand to suffer prejudice as the eviction would leave them without shelter. She urged the court to allow the application.
5. In response, the auctioneer, through its representative, Michael A. Mulwa, filed a replying affidavit sworn on 8th October 2024, stating that they were enforcing the judgment of the court, which directed them to remove the plaintiffs/applicants from the suit premises and put the defendant/respondent in possession.
6. He averred that they met resistance from the plaintiffs/applicants who refused to open the gate and the house locking everywhere in order to frustrate them and with the permission of the respondent’s agents and pursuant to Order 22 Rule 29 of the Civil Procedure Rule, they were forced to break the gate and other places in order to enforce the judgement of the court.
7. He stated that after the eviction, he prepared a report which he filed in court, and that the applicants were abusing the court process as the court orders had already been enforced.
8. The 1st applicant filed a further affidavit sworn on 4th October 2024. According to the said affidavit, she deemed the actions of the auctioneer and the eviction to be illegal, as she had not been served with an eviction notice, an action that rendered her homeless and also caused her fear, anxiety and trauma.
9. She also filed another further affidavit sworn on 17th October 2024. In the latter affidavit, she reiterated that the defendant’s agents’ actions were illegal and urged the court to correct the illegalities by declaring the purported eviction null and void and to order the plaintiffs'' reinstatement to the suit property.
10. The application was canvassed by way of written submissions.
11. The plaintiffs, through their advocates Gikandi & Company Advocates, filed their written submissions dated 16th October 2024.
12. Counsel urged the court to set aside the warrants of eviction issued on 11th September 2023, as they are void ab initio. It was alleged that the defendant did not apply for the warrants, and if he did, he failed to serve the plaintiffs or their representatives. The said warrants are fundamentally flawed, as they misidentify the parties by naming the defendant as the plaintiff and the plaintiffs as the defendant, rendering them fatally defective and the eviction a nullity.
13. Counsel further submitted that breaking into the suit premises without a court order amounts to an illegality. The eviction was conducted in blatant disregard of the law, rendering it illegal. Counsel urged the court to correct the said illegalities by declaring the eviction null and void and reinstating the plaintiffs to the suit premises.
14. The defendant, on the other hand, through his advocates, MK Mulei & Company Advocates, filed his written submissions dated 18th November 2024. Counsel submitted that the application lacked merit, was a waste of the court’s time and a gross abuse of the court process. The eviction was lawful and was completed despite the plaintiffs’ resistance. Counsel contended that no costs were granted in the judgment; therefore, the issue of taxation of costs does not arise.
15. Counsel further submitted that there was no need for notice since a period of one year had not lapsed after the last orders against the plaintiffs, which was dismissal by the Supreme Court, of their application, vide ruling delivered on 30th August 2024. Order 22, Rule 18 of the Civil Procedure Rules contemplated situations where litigation was dormant for a period of one year, meaning a situation where the last order in litigation is one year old, which is not the case herein.
16. Counsel submitted that the force used was reasonable and necessitated by refusal and outright physical resistance by the plaintiffs, their friends and neighbours who were assisting them in refusal to give vacant possession of the suit property.
17. Counsel further submitted that the application had been overtaken by events and issuance of orders for stay would be an exercise in futility and would cause the court to labour in vain. Counsel urged the court to dismiss the application with costs.
18. I have considered the application before the Court, and the response thereto. I have also taken note of the submissions from the parties. Does the application have merit? What orders should be issued in this case?
19. I must note at the outset that this is the latest iteration of the litigation between the parties. Despite losing the battles in the High Court, the Court of Appeal and the Supreme Court, the plaintiff isn’t giving up.
20. Since what is before the court is an application for stay of execution, it is incumbent on me to look at what the Rules provide. Order 42 rule 6 (1) and (2) of the Civil Procedure Rules states that:-
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.
21. From the provision above, it is evident that in the issuance of stay of execution orders, the court has to consider three factors, namely:-
(i) Substantial loss;
(ii) The application has been made without unreasonable delay; and
(iii) Security.
22. In discussing substantial loss, the court in the case of JAMES WANGALWA & ANOTHER V AGNES NALIAKA CHESETO [2012] KEHC 1094 (KLR) stated,
“No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process.
The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal. This is what substantial loss would entail, a question that was aptly discussed in the case of Silverstein N. Chesoni [2002] 1KLR 867, and also in the case of Mukuma V Abuoga quoted above. The last case, referring to the exercise of discretion by the High Court and the Court of Appeal in the granting stay of execution, under Order 42 of the CPR and Rule 5(2) (b) of the Court of Appeal Rules, respectively, emphasized the centrality of substantial loss thus:
“…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”
23. Regarding time within which a stay of execution application ought to be heard the court in the case of Jaber Mohsen Ali & another v Priscillah Boit & another [2014] KEELC 132 (KLR) stated that:-
“The question that arises is whether this application has been filed after unreasonable delay. What is unreasonable delay is dependent on the surrounding circumstances of each case. Even one day after judgment could be unreasonable delay depending on the judgment of the court and any order given thereafter. In the case of Christopher Kendagor v Christopher Kipkorir Eldoret E&L 919 of 2012 the applicant had been given 14 days to vacate the suit land. He filed an application one day after the 14 days. The application was denied, the court holding that, the application ought to have come before expiry of the period given to vacate the land.”
24. This court, in its judgment delivered on 10th April 2019, dismissed the plaintiff''s suit. In the said suit, the plaintiffs sought a permanent injunction restraining the defendant from interfering with their use and enjoyment of the suit property, a declaration that the 1st plaintiff has an equitable interest in all the suit property, and general damages. The court allowed the defendant’s counterclaim and made the following declarations and orders: no marriage exists between the 1st plaintiff and the defendant; the defendant has no obligation to maintain the plaintiffs; the plaintiffs do deliver to the defendant vacant possession of the suit property within 3 months and in any event not later than 31st July 2019. The court declined to award costs.
25. Dissatisfied with the judgment of the court, the plaintiffs appealed to the Court of Appeal. The said Court, in its judgment of 6th May 2022, dismissed the appeal and confirmed the judgment, declarations and orders of the learned judge. The plaintiffs aggrieved then filed a Notice of Appeal to the Supreme Court against the judgment of the Court of Appeal. The Supreme Court, in its ruling delivered on 30th August,2024, found that the plaintiff''s motion did not raise an issue of general public importance, dismissed it and ordered each party to bear their own costs.
26. Since the delivery of the judgment of this court, the plaintiffs have moved the court severally seeking either stay of execution orders or injunction orders, all seeking to bar the defendant from executing the judgment/orders and or carrying out eviction against them.
27. This court issued warrants of arrest on 14th September 2023 to Swiftway Auctioneers, which ordered them to put the defendant Aldo Pasini in possession of the suit property and to remove the plaintiffs or any person bound by the decree who may refuse to vacate the same and remove their personal belongings from the suit property. There being valid warrants from the court, whose authenticity was verified on 7th June 2024, the eviction cannot be termed illegal.
28. This court, having dealt with similar issues before in this matter, is of the view that the application herein is an abuse of court process and a ploy to bar the defendant from enjoying the fruits of his judgment. Eviction has also been carried out as indicated in the auctioneer’s report dated 30th September 2024 and as per the court orders.
29. In the circumstances, it is my finding that the application herein lacks merit. The same is hereby dismissed with no orders as to costs.
30. Orders accordingly.
Dated and signed at Mombasa, the 11th day of December 2024. Delivered virtually through Microsoft TEAMS.
'
a) Spent;
b) That pending the hearing and determination this application an order of stay of execution do issue restraining the defendant, his agents, servants and/or employees from evicting the plaintiffs from all that property known as number CR 40958/7 sub-division 17235(Original No.13324/4 of Section 1 Mainland North);
c) That the warrant of eviction issued herein dated 11th September,2023 be set aside;
d) That the costs of this application be provided for.
2. The application is premised on the grounds therein and the supporting affidavit of the 1st applicant. She averred that she has at all material times resided on the suit property in furtherance of the intimate relationship she enjoyed with the respondent. On 27th September 2024 at 10 am, the respondent’s agents, Swift Auctioneers, together with police officers from Bamburi Police Station, descended on the suit property and broke open the main gate and main door to the house, asking her to pack and leave.
3. She further stated that the said actions by the respondent are illegal and unlawful as the warrants being executed were issued on 11th September 2023, more than a year, which contravenes Order 22 Rule 18 of the Civil Procedure Rules 2010. This also contravened Order 22, Rule 7(2)(h) of the Civil Procedure Rules and Section 94 of the Civil Procedure Act, as taxation had never been done.
4. She averred that she and her son stand to suffer prejudice as the eviction would leave them without shelter. She urged the court to allow the application.
5. In response, the auctioneer, through its representative, Michael A. Mulwa, filed a replying affidavit sworn on 8th October 2024, stating that they were enforcing the judgment of the court, which directed them to remove the plaintiffs/applicants from the suit premises and put the defendant/respondent in possession.
6. He averred that they met resistance from the plaintiffs/applicants who refused to open the gate and the house locking everywhere in order to frustrate them and with the permission of the respondent’s agents and pursuant to Order 22 Rule 29 of the Civil Procedure Rule, they were forced to break the gate and other places in order to enforce the judgement of the court.
7. He stated that after the eviction, he prepared a report which he filed in court, and that the applicants were abusing the court process as the court orders had already been enforced.
8. The 1st applicant filed a further affidavit sworn on 4th October 2024. According to the said affidavit, she deemed the actions of the auctioneer and the eviction to be illegal, as she had not been served with an eviction notice, an action that rendered her homeless and also caused her fear, anxiety and trauma.
9. She also filed another further affidavit sworn on 17th October 2024. In the latter affidavit, she reiterated that the defendant’s agents’ actions were illegal and urged the court to correct the illegalities by declaring the purported eviction null and void and to order the plaintiffs'' reinstatement to the suit property.
10. The application was canvassed by way of written submissions.
11. The plaintiffs, through their advocates Gikandi & Company Advocates, filed their written submissions dated 16th October 2024.
12. Counsel urged the court to set aside the warrants of eviction issued on 11th September 2023, as they are void ab initio. It was alleged that the defendant did not apply for the warrants, and if he did, he failed to serve the plaintiffs or their representatives. The said warrants are fundamentally flawed, as they misidentify the parties by naming the defendant as the plaintiff and the plaintiffs as the defendant, rendering them fatally defective and the eviction a nullity.
13. Counsel further submitted that breaking into the suit premises without a court order amounts to an illegality. The eviction was conducted in blatant disregard of the law, rendering it illegal. Counsel urged the court to correct the said illegalities by declaring the eviction null and void and reinstating the plaintiffs to the suit premises.
14. The defendant, on the other hand, through his advocates, MK Mulei & Company Advocates, filed his written submissions dated 18th November 2024. Counsel submitted that the application lacked merit, was a waste of the court’s time and a gross abuse of the court process. The eviction was lawful and was completed despite the plaintiffs’ resistance. Counsel contended that no costs were granted in the judgment; therefore, the issue of taxation of costs does not arise.
15. Counsel further submitted that there was no need for notice since a period of one year had not lapsed after the last orders against the plaintiffs, which was dismissal by the Supreme Court, of their application, vide ruling delivered on 30th August 2024. Order 22, Rule 18 of the Civil Procedure Rules contemplated situations where litigation was dormant for a period of one year, meaning a situation where the last order in litigation is one year old, which is not the case herein.
16. Counsel submitted that the force used was reasonable and necessitated by refusal and outright physical resistance by the plaintiffs, their friends and neighbours who were assisting them in refusal to give vacant possession of the suit property.
17. Counsel further submitted that the application had been overtaken by events and issuance of orders for stay would be an exercise in futility and would cause the court to labour in vain. Counsel urged the court to dismiss the application with costs.
18. I have considered the application before the Court, and the response thereto. I have also taken note of the submissions from the parties. Does the application have merit? What orders should be issued in this case?
19. I must note at the outset that this is the latest iteration of the litigation between the parties. Despite losing the battles in the High Court, the Court of Appeal and the Supreme Court, the plaintiff isn’t giving up.
20. Since what is before the court is an application for stay of execution, it is incumbent on me to look at what the Rules provide. Order 42 rule 6 (1) and (2) of the Civil Procedure Rules states that:-
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.
21. From the provision above, it is evident that in the issuance of stay of execution orders, the court has to consider three factors, namely:-
(i) Substantial loss;
(ii) The application has been made without unreasonable delay; and
(iii) Security.
22. In discussing substantial loss, the court in the case of JAMES WANGALWA & ANOTHER V AGNES NALIAKA CHESETO [2012] KEHC 1094 (KLR) stated,
“No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process.
The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal. This is what substantial loss would entail, a question that was aptly discussed in the case of Silverstein N. Chesoni [2002] 1KLR 867, and also in the case of Mukuma V Abuoga quoted above. The last case, referring to the exercise of discretion by the High Court and the Court of Appeal in the granting stay of execution, under Order 42 of the CPR and Rule 5(2) (b) of the Court of Appeal Rules, respectively, emphasized the centrality of substantial loss thus:
“…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”
23. Regarding time within which a stay of execution application ought to be heard the court in the case of Jaber Mohsen Ali & another v Priscillah Boit & another [2014] KEELC 132 (KLR) stated that:-
“The question that arises is whether this application has been filed after unreasonable delay. What is unreasonable delay is dependent on the surrounding circumstances of each case. Even one day after judgment could be unreasonable delay depending on the judgment of the court and any order given thereafter. In the case of Christopher Kendagor v Christopher Kipkorir Eldoret E&L 919 of 2012 the applicant had been given 14 days to vacate the suit land. He filed an application one day after the 14 days. The application was denied, the court holding that, the application ought to have come before expiry of the period given to vacate the land.”
24. This court, in its judgment delivered on 10th April 2019, dismissed the plaintiff''s suit. In the said suit, the plaintiffs sought a permanent injunction restraining the defendant from interfering with their use and enjoyment of the suit property, a declaration that the 1st plaintiff has an equitable interest in all the suit property, and general damages. The court allowed the defendant’s counterclaim and made the following declarations and orders: no marriage exists between the 1st plaintiff and the defendant; the defendant has no obligation to maintain the plaintiffs; the plaintiffs do deliver to the defendant vacant possession of the suit property within 3 months and in any event not later than 31st July 2019. The court declined to award costs.
25. Dissatisfied with the judgment of the court, the plaintiffs appealed to the Court of Appeal. The said Court, in its judgment of 6th May 2022, dismissed the appeal and confirmed the judgment, declarations and orders of the learned judge. The plaintiffs aggrieved then filed a Notice of Appeal to the Supreme Court against the judgment of the Court of Appeal. The Supreme Court, in its ruling delivered on 30th August,2024, found that the plaintiff''s motion did not raise an issue of general public importance, dismissed it and ordered each party to bear their own costs.
26. Since the delivery of the judgment of this court, the plaintiffs have moved the court severally seeking either stay of execution orders or injunction orders, all seeking to bar the defendant from executing the judgment/orders and or carrying out eviction against them.
27. This court issued warrants of arrest on 14th September 2023 to Swiftway Auctioneers, which ordered them to put the defendant Aldo Pasini in possession of the suit property and to remove the plaintiffs or any person bound by the decree who may refuse to vacate the same and remove their personal belongings from the suit property. There being valid warrants from the court, whose authenticity was verified on 7th June 2024, the eviction cannot be termed illegal.
28. This court, having dealt with similar issues before in this matter, is of the view that the application herein is an abuse of court process and a ploy to bar the defendant from enjoying the fruits of his judgment. Eviction has also been carried out as indicated in the auctioneer’s report dated 30th September 2024 and as per the court orders.
29. In the circumstances, it is my finding that the application herein lacks merit. The same is hereby dismissed with no orders as to costs.
30. Orders accordingly.
Dated and signed at Mombasa, the 11th day of December 2024. Delivered virtually through Microsoft TEAMS.
'