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|Case Number:||Civil Application 364 of 2014|
|Parties:||R K K v M WK, C N & SG|
|Date Delivered:||22 Apr 2016|
|Court:||Court of Appeal at Nairobi|
|Judge(s):||John Wycliffe Mwera, George Benedict Maina Kariuki, Philomena Mbete Mwilu|
|Citation:||R K K v M W K & 2 others  eKLR|
|Case History:||(Being an application for interim Orders and stay of execution of the decree pending the hearing and determination of an appeal against the Order by the High Court of Kenya, Nairobi (Ougo, J) delivered on 22nd day of September 2014 in H.C.C.C. NO. 122 of 2013)|
|Case Outcome:||Application dismissed|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
IN THE COURT OF APPEAL
(CORAM: MWERA, G.B.M. KARIUKI, MWILU JJ.A.)
CIVIL APPLICATION NO. NAI 364 OF 2014
R K K........................................ APPELLANT/APPLICANT
M W K ................................................. 1ST RESPONDENT
C N ...................................................... 2ND RESPONDENT
S G ...................................................... 3RD RESPONDENT
(t/a Particulars withheld)
(Being an application for interim Orders and stay of execution of the decree pending the hearing and determination of an appeal against the Order by the High Court of Kenya, Nairobi (Ougo, J) delivered on 22nd day of September 2014
H.C.C.C. NO. 122 of 2013)
RULING OF THE COURT
1. On 20th March 2015, R K K, the applicant, made an application to this court by way of a notice of motion dated 19th March 2015 supported by his own affidavit. The application sought the following orders against M W K, C N and Particulars withheld the 1st, 2nd and 3rd respondents respectively –
3. Following the application made to the High Court in the said suit by the respondents against the applicant seeking interim orders analogous to the prayers in the plaint, the High Court in its ruling dated 22nd September 2015 gave interim orders against the applicant which are the subject of the applicant’s appeal to this court whose record was filed on 18th December 2014.
Pending the hearing of the appeal, the applicant presented to this Court on 20th March 2015 the aforementioned notice of motion seeking the aforesaid orders.
4. When the application came up for hearing, learned counsel Ms Lilian Machio appeared for the applicant and learned counsel Mr. D. Anzala appeared for the 1st respondent. Mr. Gatheru Gathemia appeared for the 3rd and 4th respondents. The applicant in addition to the affidavit in support of the motion filed a further affidavit on 19th May 2015 and a list of authorities while the 1st respondent filed a replying affidavit on 23rd April 2015 and a list of authorities on 19th May 2015. The 3rd and 4th respondents only filed a statement of grounds of opposition.
6. Ms Machio urged us to grant the orders sought in the application on the grounds that the applicant has an arguable appeal and that unless the orders are granted, the appeal, if successful, shall become nugatory. It was Ms Machio’s submission that the learned Judge of the High Court (Ougo J) contradicted herself because, on the one hand, she held that conclusive findings can only be made after adduction of evidence during the trial while on the other hand she granted the interim injunctive orders in absence of such evidence. It was counsel’s view that the orders issued by the High Court did not protect the interest of the applicant in relation to the school, its income, and developments. In counsel’s view, the applicant was locked out. She contended that her client had discovered that school income was being diverted to a bank account unknown to the applicant and that the 1st respondent’s averment that the money was used to pay loans owed by the school was not supported by evidence. Counsel urged the court that the school business was a partnership and that the 1st respondent was the only one involved in managing the business and hence there was need to protect the interest of the applicant who was a signatory to the bank accounts, a fact, in counsel’s view, that renders untenable the 1st respondent’s allegation of fraud on the part of the applicant. It was the submission of the applicant’s counsel that the withdrawal by the applicant of Shs.6 million from the business bank account on 23rd April 2008 was with the knowledge of the 1st respondent. Counsel urged us to allow the application and to grant the orders sought. She placed reliance on the averments of the applicant contained in the latter’s affidavits.
We have also given due consideration to the rival submissions made by counsel for the parties. The application is predicated on rule 5(2)(b) of this court’s Rules. Under the rule, where an appeal has been filed or a notice of appeal has been duly given manifesting intention to appeal, this court has jurisdiction in civil proceedings to order a stay of execution, an injunction or a stay of any further proceedings on such terms as the Court may think just. The court has developed principles to guide it in the exercise of its discretionary jurisdiction under rule 5(2)(b). These principles are designed to balance two parallel propositions, first, that a successful litigant should not be deprived of the fruits of a judgment in his favour without just cause and secondly that a litigant who is aggrieved by a decision should not be deprived of his right to challenge the impugned decision to the higher court. In Butt v. Rent Restriction Tribunal this court held that the power to grant or refuse an application under rule 5(2)(b) (supra) is discretionary and in exercising it the Court should consider the special circumstances of the case and unique requirements; further, that the discretion should be exercised in such away as not to prevent an appeal; that 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; that a judge should not refuse to grant stay where 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.
11 . In the instant application, the memorandum of appeal filed by the applicant shows that there are issues for consideration and determination by the Court which include the question whether the learned Judge applied the correct principles and whether she took into account the relevant considerations. As to whether the appeal, if successful, shall be rendered nugatory, the injunction against the applicant restrains the latter from transferring to a third party the title to the motor vehicles referred to in the order. If we were to stay that order as prayed by the applicant, the effect would be to defeat the substratum of the pending suit in the High Court as the applicant would be handed a carte blanche in relation to the vehicles whose ownership is the subject of the dispute in the suit pending in the High Court.
As regards the order restraining the applicant from interfering with the schools or the 1st respondent, the issue of ownership is a moot point and is subject to determination. While we would not wish to delve into issues that touch on the merits of the appeal at this stage, we observe that while the 1st respondent alleges that the introduction of the applicant’s name into the business was gratuitous, the latter does not show that he contributed to the school business or ever managed the schools as one would expect of a partner who has put in some investment. We also observe that the relationship obtaining between the applicant and the 1st respondent at the material time appears to be that of a couple in cohabitation. It is clear to us that the suit was brought by the 1st respondent and that the applicant did not raise a counter-claim. His grievance is that the interim orders granted to the respondent which he has appealed against have inhibited him from disposing of the schools’ motor vehicles and from accessing the school and the workers. If the applicant succeeds in the appeal, the vehicles shall still be there as their transfer has been inhibited by a court order. As regards the schools, the appellant has not made any allegations alleging their mismanagement. If the appellant establishes his claim, the business shall still be available to the parties. At any rate, if during the pendency of the appeal any impropriety in management of the business is ascertained, a party is always at liberty to apply.
13. Accordingly, we decline to allow the application which we hereby dismiss with costs to the respondents.
Dated and delivered this 22nd day of April 2016.
J. W. MWERA
JUDGE OF APPEAL
G.B.M. KARIUKI SC
JUDGE OF APPEAL
P. M. MWILU
JUDGE OF APPEAL
I certify that this is a true copy of the original.