Case ID:175022

Martin Chege Kahari v Letshego Kenya Limited & another [2021] eKLR

Case Metadata

Case Number:

Environment and Land Appeal 7 of 2021

Parties:

Martin Chege Kahari v Letshego Kenya Limited & Eliud C.Wambu t/a Chador Auctioneers

Date Delivered:

13 May 2021

Case Class:

Civil

Court:

Environment and Land Court at Thika

Case Action:

Ruling

Judge(s):

Lucy Nyambura Gacheru

Citation:

Martin Chege Kahari v Letshego Kenya Limited & another [2021] eKLR

Case History:

(Being and appeal from a Ruling by the Chief Magistrate Court in Thika Hon. J.M Nangea dated 8th December 2020 in MCL&E Case No. 74 of 2020).

Court Division:

Environment and Land

County:

Kiambu

History Docket No:

MCL&E Case No. 74 of 2020

History Magistrate:

Hon. J.M Nangea - CM

History County:

Kiambu

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 ENVIRONMENT AND LAND COURT AT THIKA

ELC APPEAL NO. 7 OF 2021

MARTIN CHEGE KAHARI...............................................................APPELANT

-VERSUS-

LETSHEGO KENYA LIMITED............................................1

ST

RESPONDENT

ELIUD C.WAMBU T/A CHADOR AUCTIONEERS..........2

ND

RESPONDENT

(Being and appeal from a Ruling by the Chief Magistrate Court in Thika Hon. J.M Nangea dated 8

th

December 2020 in MCL&E Case No. 74 of 2020).

RULING

Through a Notice of Motion dated

19

th

January 2021,

expressed to be bought under

Order 42 Rule 6

of the Civil Procedure Rules and

Section 3A

of the

Civil Procedure Act

, the Applicant sought the following orders;

1. That there be a stay of the ruling and consequential orders of the ruling of the application dated

23

rd

September 2020

, delivered on the

8

th

December 2020,

pending this appeal.

2. That the now proposed auction scheduled for the

30

th

January 2021

, be stayed pending this appeal.

3. That the costs of this application be provided for.

The application is grounded in the affidavit sworn by

Martin Kahari Chege,

through the Law Firm of

Maina Muiruri & Co. Advocates.

He averred

that the Court in

Thika

MCL&E Case No. 74 of 2020,

had dismissed his injunctive application dated

23

rd

September 2020,

yet the auctioneer and bank had not advertised the proposed auction of

Title No.Gatuanya/ Ngoliba/Block 1/1889.

He further averred that being dissatisfied with the said Court’s ruling, he has filed this Appeal and it has come to his attention that the Respondents have advertised the charged property being

Title No. Gatuanya/Ngoliba/Block 1/1889,

for auction scheduled on

30

th

January 2021,

despite the Respondents not having met the legal and statutory threshold for the exercise of the

Chargee’s power

of sale.

He further deponed that he is continuing to repay the loan and he is willing to abide by any condition that the Court may impose. He further proposed to pay the

Decretal sum

in instalments.

The Application is opposed, and the Respondents filed their grounds of opposition dated

25

th

January 2021,

and averred that the application filed by the Appellant does not meet the threshold for grant of Stay of Execution pending Appeal under established principles.

The 1

st

and 2

nd

Respondents also filed a Replying Affidavit dated

26

th

January 2020,

sworn by

Winnierohi Wafula,

a legal officer of the 1

st

Respondent. She deponed that the appellant approached the 1

st

Respondent seeking a financial facility of

Kshs.1,500,000/=

and the same was secured by a legal charge over the property known as

Gatuanya/Ngoliba/Block 1/1889,

in the name of

James Kahari Kiragu,

the guarantor, deed of guarantee and indemnity signed by the guarantor being the owner of the property charged to be paid in

36

equal monthly installments of

Kshs.59,416.67/=

She further deponed that the appellant failed to make regular payments and fell due as at

13

th

August 2019,

and he was issued with a

90 day

Statutory Notice.

She averred that further on

26

th

August 2019

, the 1

st

Respondent issued a

40 days

Notice requiring the appellant to rectify his default of

Kshs.1,319,326/=

. The auctioneers further issued a

45 days

Redemption Notice

to both the Plaintiff and guarantor, being the owner of the subject property. Further that the 1

st

Respondent proceeded to advertise the property for sale on

14

th

September 2020,

when the Plaintiff ran to Court to stop the sale and the Court issued a temporary injunction and upon full hearing of the appellant’s application dated

23

rd

September 2020,

the Court dismissed the matter, causing the appellant to file this application for stay. It was her contention that the ruling dated

8

th

December 2020,

dismissing the Appellant’s application is a negative order and does not require performance by any of the parties save for payment of costs.

The Application was canvassed by way of written submissions. The 1

st

and 2

nd

Respondents filed their submissions on

12

th

February 2021,

through the Law Firm of

Mulongo & Co. Advocates,

while the Appellant/ Applicant filed his on

5

th

February 2021,

through the Law firm of

Maina Muiruri & Co. Advocates.

The main issues for determination are;-

1. Whether the Appellant/Applicant is entitled to stay of Execution.

2. Whether the Applicant is entitled to stay of the impending auction which was scheduled on 30

th

January 2021.

1.

Whether the Appellant/Applicant is entitled to stay of Execution

The Applicant has sought for stay of execution of a ruling delivered by

Hon. J. M. Nangea (Chief Magistrate)

on

8

th

December 2020

. It is not in doubt that the said ruling merely dismissed the Appellant/ Applicant’s application with costs being in the cause.

The guiding provisions of the Law with regards to Stay of Execution are to be found in

Order 42 Rule 6 (2) of the Civil Procedure Rules, 2010

which provides that an applicant must demonstrate the following:-

a.

Substantial loss may result to the applicant unless the

order was made;

b.

The application was made without unreasonable

delay; and

c.

Such security as the Court orders for the due performance of such decree or order as may ultimately binding on him has been given by the applicant.

From the above provisions of law, it is evident that for the Court to exercise its discretion, the Appellant/Applicant should meet the conditions as set out in the said

Order 42 Rule 6 of the Civil Procedure Rules, 2010

.

However, it is not in doubt that the order issued by the trial Court

,

was a

negative order

, as the Court only dismissed the said application for grant of temporary injunction and did not order any party to do anything or refrain from doing anything. The Court notes that the orders issued vide the Ruling delivered on the

8

th

December 2020,

were to the following effect:-

15. Due to the foregoing reasons/observations, I find that the Plaintiff has not made out a prima facie case with a probability of success. He will not also suffer irreparable loss as he knew all along that the suit property and other collateral could be sold off to recover any loan arrears.

16. The application does not meet the threshold for grant of temporary injunction and is hereby dismissed. Costs of the application shall be in the cause.

These orders, were in the Court’s humble opinion and in agreement with the 1

st

and 2

nd

Respondent’s submission,

Negative orders

. The issue of negative orders was dealt with in the case of

Milcah Jeruto vs Fina Bank Ltd [2013] eKLR,

where it held that an order for stay cannot be granted where a negative order had been issued. Under Section 2 of the Civil Procedure Act, the definition of a

Decree holder

alludes to an order that was capable of being executed.

Also, In the case of

Western College of Arts and Applied Sciences vs. Oronga (1976) KLR 63

at p. 66 Law V P said:-

“But what is there to be executed under the judgment, the subject of the intended Appeal? The High Court has merely dismissed the suit with costs. Any execution can only be in respect of costs … In the instant case, the High Court has not ordered any of the parties to do anything or refrain from doing anything or to pay any sum. There is nothing arising out of the High Court judgment for this Court in an application for stay, to enforce or to restrain by injunction.”

2.

Whether the Applicant is entitled to stay of the impending

auction which was scheduled on 30

th

January 2021 pending

this Appeal?

From the annextures

MKG 2

, it is evident that there was a schedule

auction for

30

th

January 2021.

However, on

26

th

January 2021,

the Parties herein entered a

consent

whereby the said proposed auction that was scheduled for

30

th

January 2021,

was stayed pending the interparties hearing of the instant Application.

It is evident that the Appeal herein emanates from a Ruling of an Interlocutory Application which Ruling was delivered on

8

th

December 2020,

and it dismissed the Applicant’s application of injunction.

After the said Ruling, the 2

nd

Respondent herein advertised the suit property for sale by public auction. The said auction was scheduled for

30

th

January 2021.

In the instant Appeal, the Appellant is seeking for setting aside of the Ruling delivered on

8

th

December 2020

, and that the prayers sought vide the application dated

23

rd

September 2020,

be allowed.

The prayers sought in the Application dated

23

rd

September, 2020

are injunctive orders. If Appeal herein is successful, then the said orders may be allowed. However, if the suit property would have been sold, then the Appeal would have been rendered nugatory and just a mere academic exercise.

The purpose of Stay pending Appeal is to maintain status quo. The said stay pending Appeal can be allowed if the Appeal has a high chance of success and that if the stay is not granted, the said Appeal may be rendered nugatory. See the case of

Consolidated Marine...Vs...Nampijja & Another, Civil App.No.93 of 1989 (Nairobi

), where the Court held that:-

“The purpose of the application for stay of execution pending appeal is to preserve the subject matter in dispute so that the right of the appellant who is exercising his undoubted right of appeal are safeguarded and the appeal if successful is not rendered nugatory”.

In the instant case, if the proposed auction is allowed to proceed, then the instant Appeal will be a mere academic exercise as the said Appeal will have been rendered nugatory.

For the above reasons, the Court finds that the applicant is entitled to

Stay of the proposed public Auction but on condition that he deposits

Kshs.300,000/=

in his Account held with the 1

st

Respondent herein within the next

7 days

from the date hereof. In default, the

Stay orders

herein will lapse automatically.

Further the Appeal herein to be prosecuted expeditiously. For the above reasons, the Appellant is directed to file the

Record of Appeal

within a period of

30 days,

from the date hereof.

It is so ordered

DATED, SIGNED AND DELIVERED AT THIKA THIS 13TH DAY OF MAY 2021.

L. GACHERU

JUDGE

13/5/2021

Court Assistant – Lucy

ORDER

In view of the declaration of measures restricting Court operations due to the

COVID-19

Pandemic, and in light of the directions issued by His Lordship, the Chief Justice on

15

th

March 2020

, this

Ruling

has been delivered to the parties online with their consents. They have waived compliance with

Order 21 rule 1

of the

Civil Procedure Rules

which requires that all judgments and rulings be pronounced in open Court.

With Consent of and virtual appearance via video conference – Microsoft Teams Platform

No appearance for the Appellant

No appearance for the 1

st

Respondent

No appearance for the 2

nd

Respondent

L. GACHERU

JUDGE

13/5/2021