RULING OF THE COURT
On 3rd May 2018, the parties to this application appeared before us for interpartes hearing of the application dated 23rd April 2018. The applicant “Abdullahi Mohamed Sheikh” filed the application pursuant to rule 5 (2) (b) of this Court’s Rules seeking stay of execution of the High Court ruling dated 13th April 2018 by Sewe, J. The Judge had declined in the said ruling to restrain the sale of Land Reference Nos. 209/260/19388, 209/7260/19389 and 209/7260/72 belonging to the applicant “the suit properties” by way of public auction. Following the hearing of the application, we delivered an ex tempore ruling in which we dismissed the application with costs to the respondent. We then reserved to this day, our detailed ruling, giving reasons for the decision. This is the ruling.
By way of background, by an application dated 19th December 2016, the applicant sought from the High Court, a temporary injunction to restrain the respondent from dealing in any way whatsoever with the suit properties pending the hearing and determination of Nairobi, Civil Suit No. 501 of 2016 that the applicant had filed. Following the hearing of that application, the court declined to grant the temporary injunction on the ground that the applicant had acknowledged its indebtedness to the respondent and had further admitted failing to meet the monthly repayment schedule agreed upon by the parties. Accordingly, she dismissed the application on the basis that a prima facie case had not been made out by the applicant to warrant the injunction.
Undeterred, the applicant filed another application on 29th January 2018, seeking stay of execution of the aforesaid orders and/or review and setting aside of the same. The application was premised on the grounds that the suit properties had been advertised for sale on 1st February 2018 by the respondent following the court’s refusal to grant the injunction. The applicant intimated to court that he was ready to settle the debt by monthly instalments of Kshs. 500,000.00 and or such other instalments as the court may direct. On that premise, the court on 31st January 2018 temporarily stopped the auction that had been scheduled for the next day pending the court’s substantive ruling on the application, but on condition that the applicant meets all expenses pertaining to the auction, by the end of that day failing which the respondent would proceed with the auction as scheduled.
The applicant failed to comply with those orders and went ahead to file yet another application dated 5th February 2018 praying that he be allowed to settle the debt by monthly instalments of Kshs. 500,000.00. He contended that he had by then paid Kshs. 500,000.00 and Kshs. 300,000.00 respectively to the auctioneer against his total bill of Kshs. 1,673,180.00. The Judge opted to give a composite ruling on 13th April 2018 on the two applications since the second application had a bearing on the first one. However, a month before delivery of the said ruling, the applicant filed yet again another application dated 13th March 2018 seeking to restrain the respondent from disposing the suit properties through an auction slated for 29th March 2018. Following the hearing of that application, the ruling was reserved for 13th April 2018 just like the other two applications.
On 13th April 2018, the High Court delivered its ruling on the three applications. As it is, therefore, the ruling the applicant seeks to stay is in respect of the three applications. In her ruling, the Judge found that the orders issued on 22nd December 2017, being negative in nature, were incapable of being stayed. As already stated, the learned Judge had dismissed the applicant’s initial application for injunction and was of the view that such an order was not amenable to stay orders.
The Judge further declined to review and or set aside the orders on the ground that the applicant had failed to meet the set strictures in law for review and or setting aside.
With regard to the 2nd application, the Judge dismissed the same upon finding that the applicant had failed to comply with the orders dated 31st January 2018. The 3rd application was similarly dismissed on grounds that the same was an abuse of the court process, having been filed seeking similar reliefs during the pendency of the other two earlier applications.
Wishing to contest the ruling in this Court, the applicant on 13th April 2018 filed a notice of appeal and subsequently invoked our jurisdiction under rule 5 (2) (b) of our Rules by seeking stay of execution of the High Court ruling aforesaid. The applicant also sought, in the alternative an interim injunction to restrain the respondent from proceeding with the intended sale of the suit properties.
In a bid to satisfy the principle that the intended appeal was arguable and not frivolous, the applicant exhibited a draft memorandum of appeal. He submitted that given the grounds of appeal in the draft memorandum of appeal, the intended appeal had high chances of success, and therefore arguable. That he had shown goodwill and willingness to settle the debt, having already paid a substantial amount which was more than half of the principal debt. He also claimed to have paid substantial amount of the auctioneer’s fees. On the aspect that the appeal would be rendered nugatory if the orders sought were not granted, the applicant contended that the respondent had advertised the suit properties for sale and he would suffer irreparable damage if they were sold.
The application was opposed by the respondent through a replying affidavit sworn by its Legal Officer. The officer deposed that the applicant had previously made promises to settle the debt but had failed to do so. The deponent termed as unreasonable the applicant’s proposal to pay Kshs. 500,000 monthly instalments against an outstanding debt of over Kshs. 112,000,000 with a monthly interest accrual of Kshs. 500,000. The respondent was apprehensive of running the risk of an unsecured loan in the event the outstanding amount exceeded the value of the suit properties.
To successfully move this Court to invoke its jurisdiction under rule 5 (2) (b) of its Rules, an applicant needs to demonstrate that the intended appeal is arguable and that it will be rendered nugatory unless orders sought are granted. The applicant is obligated to satisfy the twin principles and satisfying only one will not suffice. See Stanley Kangethe Kinyanjui v. Tony Keter and 5 others (2013) eKLR; Reliance Bank Ltd v. Norlake Investments Ltd (2002) 1 EA 227.
As per the draft memorandum of appeal annexed to the application, the applicant intends to fault the Judge on his purported failure to consider his goodwill and willingness to settle the debt; for failing to grant orders restraining the respondent from auctioning the suit properties despite his commitment to repay the loan; for finding that the orders he sought were negative and incapable of being stayed; for failing to allow his application for review on the basis of “other sufficient reasons”; and for holding that the application dated 13th March 2018 was an abuse of the court process.
As we have already adverted to, on 22nd December 2017, the High Court dismissed the applicant’s application for temporary injunction. The court found that the respondent had over the years exercised nothing but patience and understanding towards the applicant in repayment of the debt which the applicant had acknowledged and admitted. The court further found that he had failed to demonstrate that he had complied with the respondent’s proposals as to the settlement of the debt. On that premise, the High Court found that no prima facie case had been made to warrant the grant of injunctive orders. Goodwill and willingness to settle the debt were not factors the Judge was bound to consider in deciding whether or not to grant temporary relief sought by the applicant. The Judge exercised her discretion, however, and found that the respondent had extended ample leeway to the applicant. The applicant then sought to stay the execution of that order but the learned Judge held the orders to be negative in nature of which stay of execution was untenable. In Kanwal Sarjit Singh Dhiman v. Keshavji Jivraj Shah [2008] eKLR, this Court expressed itself as follows in regard to such orders;
“By the order, the superior court did not order any of the parties to do anything or refrain from doing anything or to pay any sum. It was thus, a negative order which is incapable of execution save in respect of costs only”
See also Cortec Mining Kenya Limited v. Cabinet Secretary, Attorney General and 8 others (2015) eKLR; Kwench Limited v. Nairobi City County and 2 Others, Civil Application No. Nai. 106 of 2014.
In addition, the Judge declined to review and set aside the orders on the basis that the applicant had failed to demonstrate the grounds of review as envisaged and there was no satisfactory reason to warrant such review. The applicant failed to demonstrate any of the grounds for review stipulated in section 80 of the Civil Procedure Act as read together with Order 45 rule 1 of the Civil Procedure Rules. Indeed none is apparent or discernable and therefore that intended ground would not suffice as an arguable issue in the appeal.
On the intended ground that the Judge failed to allow the applicant to pay the auctioneers fees in instalments, the Judge found that the applicant failed to comply with the orders issued on 31st January 2018. The said orders stopped a scheduled auction slated for 1st February 2018, on condition that the applicant paid all the expenses pertaining to the auction by close of business on 31st January 2018. However, the applicant failed to comply with the said orders. It is on that basis that the Judge held that the application was untenable. In our view, the court’s express orders lapsed by close of business that day and the respondent was at liberty to proceed with the auction. It would not therefore be an arguable ground of appeal.
The applicant also intends to challenge the Judge’s dismissal of his last application. The Judge found the application to be an abuse of court’s process. As stated earlier, the application was made during the pendency of the applicant’s two other applications and essentially sought orders similar to the application dated 19th December 2016. The applicant argued that the application dated 13th March 2018 was necessitated by re-advertisement of sale of the suit properties while he was still seeking courts intervention. However, a perusal of the said application reveals that the applicant had nothing new upon which to premise the application. He still had not paid the auctioneers charges in full and was still praying that the auction scheduled for 29th March 2018 be put off to enable him clear the debt through Kshs. 500,000.00 monthly instalments. Small wonder the Judge considered it an abuse of the court process. We do not think that the applicant deserved the orders sought in the circumstances of this case and the Judge correctly exercised her discretion. The applicant has not intimated that he intends to challenge the Judge’s exercise of that discretion which in our view was exercised judiciously.
The upshot of all the above is to discount the applicant’s contention that it has an arguable appeal. The applicant has failed to demonstrate that the intended appeal raises arguable point or points that warrant this Court’s consideration on appeal.
Upon that finding, there is no need for us to delve into the question whether the appeal would be rendered nugatory if the stay orders are not granted.
The application fails and is accordingly dismissed with costs to the respondent.
Dated and delivered at Nairobi this 27th day of July, 2018.
W. OUKO, (P)
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JUDGE OF APPEAL
P. N. WAKI
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JUDGE OF APPEAL
ASIKE-MAKHANDIA
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JUDGE OF APPEAL
I certify that this is a true copy of the original
DEPUTY REGISTRAR