Case ID:167367

Kihia Mwangi & 2 others v Henry Wachira Njeri [2020] eKLR

Case Metadata

Case Number:

Civil Appeal E235 of 2020

Parties:

Kihia Mwangi, Paul Mwangi Nyota & Mister Delivery Limited v Henry Wachira Njeri

Date Delivered:

26 Nov 2020

Case Class:

Civil

Court:

High Court at Nairobi (Milimani Law Courts)

Case Action:

Ruling

Judge(s):

Cecilia Wathaiya Githua

Citation:

Kihia Mwangi & 2 others v Henry Wachira Njeri [2020] eKLR

Advocates:

Mr. Otieno for the applicants

Court Division:

Civil

Advocates:

Mr. Otieno for the applicants

History Advocates:

One party or some parties represented

Case Outcome:

Application allowed

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

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL APPEAL NO. E235 OF 2020

KIHIA MWANGI....................................................................................1

ST

APPELLANT

PAUL MWANGI NYOTA.....................................................................2

ND

APPELLANT

MISTER DELIVERY LIMITED.........................................................3

RD

APPELLANT

VERSUS

HENRY WACHIRA NJERI......................................................................RESPONDENT

RULING

1. In the Notice of Motion dated 22

nd

October 2020, the appellants/applicants principally seek orders of stay of execution of the ruling of

Hon. DO Mbeja (MS)

delivered on 25

th

September 2020 and any consequential orders pending hearing and determination of their appeal.

2. The application is supported by the grounds set out on its face and the depositions made in the supporting affidavit sworn by

Mr. Kihia Mwangi

, the 1

st

applicant on his own behalf and on behalf of the other two applicants.

3. On the date the application was scheduled for hearing, the respondent though served with a hearing notice did not attend the court’s virtual session and had not filed any response to the application. The application thus proceeded for hearing

ex parte

.

4. In his oral submissions, learned counsel for the applicants

Mr. Otieno

urged me to allow the application mainly on grounds that the application was unopposed and secondly and most fundamentally, he invited me to note that there was no valid judgment capable of being executed as in his view, the judgment the respondent seek to execute was reinstated after a second application for review and was thus illegal; that the illegality of the judgment was confirmed by this court

(Hon. Njuguna J)

in proceedings in which the respondent participated in.

5. Counsel further argued that in entertaining the second application for review, the trial court contravened the provisions of

Order 45 Rule 6

of the

Civil Procedure Rules

. He also informed the court that the applicants were ready to deposit a bank guarantee as security for due performance of the decree.

6. I have carefully considered the application, the averments in the 1

st

applicant’s supporting affidavit and the oral submissions made before me by learned counsel

Mr. Otieno

. I have also read the ruling delivered by

Hon. Njuguna, J

on 13

th

February 2020 and the annextures to the applicants supporting affidavit.

7. From the ruling delivered on 13

th

February 2020, it is clear that

Hon.

Njuguna, J

was determining an application which sought stay of execution of a judgment delivered on 20

th

August 2019 which the learned trial magistrate subsequently set aside and re-opened the suit filed in the lower court for fresh hearing. The judgment was set aside vide the trial court’s ruling dated 17

th

December 2019 but by this date, the 1

st

and 2

nd

applicants who were some of the defendants in the suit had already filed an appeal to the High Court challenging the said judgment and an application for stay of execution of the judgment pending disposal of the appeal.

8. As the impugned judgment had been set aside by the time the application for stay was heard, the Hon. Judge correctly dismissed the application on grounds that there was no judgment whose execution could be stayed or appealed against and that any execution levied against such a judgment would be illegal.

The Hon. Judge in her ruling did not make any reference to the judgment which was subsequently reinstated following the ruling dated 25

th

September 2020 which is the subject of this appeal.

9. In urging me to allow the application, the 1

st

applicant deponed that the reinstated judgment was the product of an illegality since

Order 45 Rule 6

of the

Civil Procedure Rules

expressly prohibited subsequent applications for review; that given the existence of the reinstated judgment, execution was now imminent; that if stay was not granted, execution would proceed and the applicants will suffer substantial loss since the respondent was a man of straw and if their appeal succeeded, it will be impossible to recover any monies paid to the respondent.

10. In my view, the issue regarding whether or not the learned trial magistrate contravened the law in entertaining a second application for review and whether or not the reinstated judgment was illegal goes to the merits of the appeal and it would be inappropriate for me to delve into the issue at this interlocutory stage lest I prejudice hearing of the appeal. What is clear from the record is that there is a judgment dated 20

th

August 2019 which is in force and although its legality is questioned in this appeal, it can nevertheless be executed against the applicants before the appeal is determined if the stay orders are not granted.

11. The question that this court must now resolve is whether the applicants have demonstrated that they are deserving of the exercise of the court’s discretion in their favour by granting them the orders sought.

12. As stated earlier, the instant application was not opposed by the respondent. It then automatically follows that the respondent did not dispute the applicants claim that he was a man of straw and he was incapable of refunding the decretal amount if paid in the event that the applicants’ appeal is successful.

13. I have noted that the decretal amount is in excess of KShs.2,000,000. This is no doubt a substantial amount and given the applicants undisputed claim that the respondent is incapable of refunding this money if the appeal succeeds, I am persuaded to find that the applicants have demonstrated that they are likely to suffer substantial loss if the stay orders are not granted.

14. In view of the foregoing and noting that the application was filed without unreasonable delay and the applicants have pledged to offer security for the due performance of the decree, I find that the applicants have met the threshold for grant of orders of stay pending appeal as stipulated in

Order 42 Rule 6 (2)

of the

Civil Procedure Rules

.

15. Having found as I have above, am satisfied that the application is merited and it is hereby allowed on condition that the applicants will provide a bank guarantee for the decretal amount from a reputable bank within the next 60 days failing which the stay orders granted will automatically lapse.

It is so ordered.

DATED, SIGNED

and

DELIVERED

at

NAIROBI

this 26

th

day of November 2020.

C. W. GITHUA

JUDGE

In the presence of:

Mr. Otieno for the applicants

No appearance for the respondent

Ms Carol: Court Assistant