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Ndegwa & another v Kenya Commercial Bank Limited (Commercial Case 172 of 1997) [2023] KEHC 18849 (KLR) (Commercial and Tax) (23 June 2023) (Ruling)
Neutral citation:
[2023] KEHC 18849 (KLR)
Republic of Kenya
Commercial Case 172 of 1997
FG Mugambi, J
June 23, 2023
Between
Stephen Mukiri Ndegwa
1st Plaintiff
Continental Marketing Limited
2nd Plaintiff
and
Kenya Commercial Bank Limited
Defendant
Ruling
1.Before the court is an application dated March 10, 2021 brought under Section 1A, 1B, 3A of the Civil Procedure Act (CAP 21) and Order 42 rule 6 of the Civil Procedure Rules 2010, Order 43 of the Civil Procedure Rules 2010.
2.The application seeks the following orders;i.Spentii.That this Honourable court be pleased to grant leave to the applicant to appeal against the ruling delivered by the Hon Justice Maureen Odero on February 25, 2021.iii.That this Honourable court be pleased to stay the orders issued by Hon Justice Maureen Odero on February 25, 2021 pending the hearing and determination of this application.iv.That this Honourable court be pleased to stay the orders issued by the Hon Justice Maureen Odero on February 25, 2021 pending the hearing and determination of the intended appeal to be filed by the applicant herein.v.That the costs of and incidental to this application do abide the result of the said appeal.
3.The application is premised on the grounds on the face of it and supported by the affidavit sworn by Stephen Mukiri Ndegwa. The applicants rely on the fact that they had an arguable appeal with a high chance of success and which raises serious points of law and fact. It was also submitted that the respondent would not be prejudiced if the orders sought are granted.
4.The application was opposed by a replying affidavit sworn by Bonnie Okumu, the Director of Legal Services at KCB Bank Limited. He stated that lack of service of the present application to the respondent was meant to prejudice the respondent. Further, it was contended that the declaratory orders issued by the court were not amenable to stay of execution and that the plaintiffs failed to show that the appeal had reasonable chances of success. It was the respondent’s averment that the grounds for appeal were weak and the plaintiffs did not show the substantial loss they would suffer.
Analysis
5.I have considered the pleadings and rival submissions before court. There are two main issues for determination being that of stay as well as leave to appeal. On the first prayer for stay of execution, Order 42rule 6(1) of the Civil Procedure Rules gives the principles for granting stay of execution. The requirements for a party to successfully obtain the orders are provided for under Order 42, rule 6(2) which provides that:-
6.Three issues arise for consideration but even before getting into these elements, I wish to first of all consider the orders that the applicant seeks to stay. For the avoidance of any doubt, the orders of February 25, 2021 were as follows: -i.That the consent entered into between the plaintiffs and the defendant dated August 10, 2015 and filed in court on August 24, 2015 is hereby adopted as an order of the court.ii.Accordingly, the court declares that the defendant has fully satisfied its obligations to the plaintiff arising out of their claims in this suit.iii.Costs of this application shall be borne by the plaintiff/respondent.
7.I find it necessary to first of all deal with the question of whether the orders granted are capable of execution and therefore capable of being stayed by the applicants.
8.The Court of Appeal in Kenya Commercial Bank Limited v Tamarind Meadows Limited & 7 Others [2016] eKLR, was faced with similar circumstances, and with what is known as a ‘negative order’. It made the following observations: -
9.Similarly, in the case of Western College of Arts And Applied Sciences v. Oranga & Others [1976] KLR 63, this Court pronounced itself as follows: -
10.The orders that the applicant seeks to stay are negative in nature. The orders were simply for the adoption of a consent order and a declaratory order. The court did not order either of the parties to do or refrain from doing anything. It is not capable of execution or enforcement of and as such, my finding is that the order is not capable of being stayed.
11.As regards leave to appeal, the decision whether or not to grant leave to appeal is discretionary as was stated by the Court of Appeal in Kenya Shell Limited vs. Kobil Petroleum Limited [2006] eKLR. The threshold for success in an application for leave to appeal has been set out in many judicial pronouncements including the case of Machira t/a Machira & Company Advocates v Mwangi & Anor. [2002] 2 KLR 391
Determination and orders
12.I have looked at the draft Memorandum of Appeal and my finding is that the appeal is not frivolous. It raises questions pertaining to the alleged consent which if substantially heard and determined by way of an appeal may bring to rest this long tussle between the parties. There would also be no particular prejudice occasioned to the respondent.
13.In the premises, the application for leave to appeal is hereby granted. In the interests of expeditious disposal of the appeal, I direct that the intended Record of Appeal shall be filed and served within 15 days from the date of this orders. Costs shall abide in the cause.
DATED, SIGNED AND DELIVERED IN NAIROBITHIS 23 rd DAY OF JUNE 2023.F. MUGAMBIJUDGECourt Assistant: Ms. Lucy Wandiri.HCCOMM 172 OF 1997 RULING Page 12
