1.Anthone Kwena Anyimu (the applicant herein) moved to this court vide his amended plaint dated June 24, 2019 seeking several orders against Gabriel Mukele and Wallance Wesonga (the 1st and 2nd respondents herein) including an order that the respondents be compelled to transfer to the applicant the land parcels No Marachi/Esikoma/1195, 1151 and 1233 (the suit land) for having been acquired fraudulently.
2.Upon hearing the parties, Omollo J delivered a judgement dated August 4, 2022 dismissing the applicant’s suit with costs for having been filed out of time and for failure to prove fraud. Aggrieved by that judgement, the applicant filed a notice of appeal on August 23, 2022.
3.The applicant has now approached this court vide his chamber summons application dated August 22, 2022 predicted under the provisions of rule 3 of the High Court (Practice and Procedure Rules). Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, Order 42 rule 6 and Order 51 rule 1 of the Civil Procedure Rules as well as all other enabling provisions of the Law.It seeks the following orders:1:spent2:spent3:spent4:That this honourable court be pleased to stay execution of the judgment dated August 4, 2022 and all consequential orders pending the hearing and determination of the intended appeal.5:That the costs of this application be provided for by the respondents.The application is based on the grounds set out therein and is also supported by the applicant’s affidavit dated August 23, 2022.
4.The gravamen of the application is that the judgment was delivered on August 4, 2011 via email and so the applicant did not have an opportunity to apply for an order of stay of execution pending appeal. That the applicant being dissatisfied with the said judgment has instructed his counsel to file an appeal which has high chances of success and if the orders sought are not granted, this appeal will be rendered nugatory if the respondents proceed to tax their bill of costs and execute the same. That the application has been made without any delay and the respondents will not suffer any prejudice.
5.The following documents are annexed to the application:1.Notice of appeal dated August 23, 2022.2.Letter by the applicant’s counsel dated August 18, 2022 and addressed to the Deputy Registrar to furnish him with the proceedings herein for purposes of an appeal.The application is opposed and the respondents have filed grounds of opposition dated October 11, 2022 raising the following:1.That the judgement sought to be stayed dismissed the applicant’s suit and being a negative order, is incapable of execution and therefore cannot be stayed.2.That there is no valid notice of appeal and therefore no appeal on which the application can be anchored.3.That the application is bad in law, a non-starter, misconceived and fatally defective.When the application was placed before me on October 18, 2022, it was agreed that it be canvassed by way of written submissions to be filed on or before November 2, 2022. However, only the respondents filed their submissions as directed.
6.I have considered the application, the grounds of opposition and the submissions by counsel for the respondents.
7.It is clear from the judgement delivered on August 4, 2022 that the applicant’s suit was dismissed with costs. Neither of the parties was ordered to do anything and all that remains is for the respondents to tax their bill of costs. Therefore, all that there is in the judgment is a negative order. Precedents have provided guidance that for an order of stay of execution to be warranted, there must be a positive order capable of being executed. In Western College of Arts & Applied Sciences vs Oranga & Others 1976 – 80 1KLR 63, the Court of Appeal held thus:In Kanwal Sarjit Singh Dhiman v Keshavji Jivraj Shah 2008 eKLR, the Court of Appeal while considering an application for stay of a negative order held:It follows therefore that the judgement dated August 4, 2022 having been a negative order, there can be no basis upon which this court can grant the order of stay of execution pending appeal.
8.It seems to me that what the applicant seeks to forestall is the taxation of the respondents’ bill of costs. This is confirmed by the following averment in paragraph 5 of the applicant’s supporting affidavit:As far as I can see form the record, the respondents are yet to file their bill of costs. Before such a bill is filed and taxed, this court has no information regarding the decision that the Taxing Master will arrive at once the bill is filed and taxed. What then is there to stay at this stage? Absolutely nothing. And to attempt to make any orders staying the execution of a yet to be filed bill of costs will be purely speculative and will amount to this court groping in the dark. Courts make decisions founded on facts and the law but not on conjecture and mere speculation.
9.On that basis alone, this application is for dismissal.
10.Most importantly however, the law governing the grant of the orders sought by the applicant is Order 42 rule (1) and (2) of the Civil Procedure Rules which provides that:The applicant was therefore required to establish the following in order to be entitled to an order of stay of execution pending appeal:1:show sufficient cause.2:Demonstrate that if the order of stay of execution is not granted, he will suffer substantial loss.3:Approach the court without unreasonable delay.4:Offer security for the due performance of any decree that may be binding upon him.In Kenya Shell Ltd v Benjamin Kibiru 1982 – 88 1kar 1018 [1986 KLR 410], PLATT Ag JA (as he then was) underscored the importance of an applicant establishing substantial loss in order to justify an order of stay of execution pending appeal.He said:In Machira & Company Advocates v. East African Standard (no 2) 2002 2KLR63, Kuloba J addressed the same requirement in the following words:The judge went on to add that:
11.The applicant filed this notice of appeal on August 23, 2022 and this application on August 26, 2022. He has therefore satisfied the requirement of showing sufficient cause and also approached the court without unreasonable delay.
12.However, he was required to satisfy all the four requirements set out under Order 42 rule 6 (1) and (2) of the Civil Procedure Rules in order to justify the grant of the remedy sought. He has only satisfied two of them. In Ravji Halai & Another v Thornton & Turpin (1963) Ltd Ca Civil Appeal No 15 of 1990 (1990 KLR 365), the Court of Appeal said the following with regard to the jurisdiction of this court while considering such an application.
13.The arguability or otherwise of the applicant’s appeal and it’s chances of success cannot be a consideration when this court is considering an application for stay of execution arising from it’s own judgement. And although the judgment sought to be appealed was delivered by another judge (OMOLLO J), this court would be wading into dangerous territory by trying to interrogate whether or not the Applicant has “a good and arguable appeal with high chance of success” and therefore his “appeal will be rendered nugatory” if the orders sought are not granted as he has deponed in paragraph 8 of his supporting affidavit. That can only be a consideration if this court is considering an application for stay of execution pending an appeal from a Subordinate Court that will be determined by this Court. Not an appeal that will be determined by the Court of Appeal from this court’s decision.
14.Finally, the applicant was required to furnish security for the due performance of any such decree or order as may ultimately be binding upon him. Again, nowhere in his supporting affidavit or even the grounds upon which the application is anchored has the Applicant made any offer of security or even stated that he is willing to abide by any terms that this court may order as a condition for the stay. As was stated in Wycliff Sikuku Walusaka v Philip Kaita Wekesa 2020 eKLR”,As is now clear form paragraph 5 of the applicant’s supporting affidavit, his motivation in filing this application is primarily meant to scuttle the filing and taxation of the respondents’ bill of costs. But even as he does so, he is himself not in a position to state with any degree of certainty what amount the bill of costs will eventually be taxed at and, more importantly, whether that sum will infact be substantial. And what if the respondents elect to forego their costs? Would’t this court have acted in vain?
15.That up-shot of all the above is that the notice of motion dated August 22, 2022 is bereft of merit. It is dismissed with costs to the respondents.