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ELRCPartially AllowedNot stated on the face of the ruling (arising from BGM CMCC No 584 of 2016)· [2024] KEELRC 631 (KLR)

Sunrise Hauliers Limited v Motaroki (Appeal E019 of 2023) [2024] KEELRC 631 (KLR)

High Court of Kenya at Kakamega
29 February 2024
JKJ.W. Keli
4,524 words in judgment
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The bottom line

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The High Court halted execution of a Bungoma money decree, but ruled you cannot appeal and seek review on the same grounds simultaneously.

What this practically means

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Executive summary

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This ruling by J.W. Keli, J of the High Court at Kakamega, delivered on 29th February 2024, determines the applicant's Notice of Motion dated 9th December 2023 seeking a temporary stay of execution of the decree in Bungoma CMCC No 584 of 2016. The applicant's motor vehicle KBM 648 was proclaimed by Remma Auctioneers on 6th December 2023 in execution of the decree, while a motion for review of the judgment dated 18th October 2023 was pending ruling. The applicant contended that the respondent's suit was time-barred, that the trial court lacked jurisdiction having earlier (on 30th April 2020) declined jurisdiction under WIBA and referred the dispute to the Director of WIBA, and that execution before taxation was irregular. The respondent opposed, arguing that the applicant could not pursue review and appeal on the same grounds simultaneously and had not met the Order 42 Rule 6(2) conditions. The court found no stay application on the record - the orders of 8th December 2023 merely declined to certify the review application urgent - and held, following Gab International and HA v LB, that grounds 4 and 5 of the appeal, duplicating the review, could not be pursued on appeal. However, grounds 1 to 3, concerning the magistrate's exercise of discretion on urgency, could proceed. Finding substantial loss proved, no inordinate delay, and an offer of security, the court allowed the application, granting stay of execution pending the review ruling or appeal, conditional on the applicant depositing the entire decretal sum in court within 15 days, with no order as to costs.

Key legal issues

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01

Whether one can exercise both the right of appeal and review at the same time

Holding

No; a party who has chosen review on given grounds cannot simultaneously appeal on the same grounds.

Reasoning

The court adopted Odunga, J.'s position in HA v LB and the Gab International decision, holding that electing review precludes an appeal on the same grounds. However, grounds 1 to 3 of the memorandum of appeal, concerning the trial magistrate's refusal to certify the motion urgent, relate to the exercise of discretion and may proceed. Grounds 4 and 5 duplicate the review application and are barred.

p. 8
02

Whether the applicant satisfied the conditions for stay of execution under Order 42 Rule 6(2)

Holding

Yes; substantial loss was proved, there was no inordinate delay, and the applicant was willing to provide security.

Reasoning

The applicant's motor vehicle had been proclaimed by auctioneers and risked sale, which would render the pending review nugatory. The respondent's claim to be a man of means was unsupported by any accounts. The memorandum of appeal was filed two days after the impugned order, so there was no unreasonable delay. The applicant offered to deposit security.

p. 8
03

Whether there was an application for stay of execution before the trial court at all

Holding

The court found no stay application on the record; the application dated 31st October 2023 was one for review, and the orders of 8th December 2023 related to that review application.

Reasoning

On perusing the pleadings, the court noted the absence of the alleged 8th December 2023 stay application and its supporting annexures. The orders appealed against related only to directions on the review application. Nonetheless the applicant had approached the court for stay, which the court considered on its merits.

p. 7

Legal principles established

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  • Where a party files for review, that party has no legal basis to file an appeal based on the very same grounds raised in the review
  • The conditions for stay of execution pending appeal are substantial loss, absence of unreasonable delay and security for due performance of the decree, under Order 42 rule 6(2) of the Civil Procedure Rules

Court orders

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  1. 1.The applicant's application dated 9th December 2023 is allowed
  2. 2.A grant of stay of execution of the decree pending the determination of the review application dated 31st October 2023 or the appeal filed 9th December 2023, whichever is determined first
  3. 3.The Applicant/Appellant shall deposit the entire decretal sum in court within 15 days of the ruling
  4. 4.No order as to costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesRules 22 and 4
  • Civil Procedure RulesOrder 42 Rule 6(2); Order 1A, 1B; Order 43 Rule 1(k); Order XLI rule 4(2)(b)
  • Civil Procedure (Amendment) Rules 2020Order 42 Rule 6(2)
  • Constitution of KenyaArticle 159(2)
  • Work Injury Benefits Act (WIBA)Not specified (jurisdiction under WIBA referenced; Gazette Notice Number 5476 of 28th April 2024)

Cases cited (12)

  • Nicholas Stephen Okaka v Alfred Waga Wesonga
    [2022] eKLR
  • Lochab Brother & another v John Njau
    Bungoma HCC No 105 of 2019
  • Gab International Construction Co; Ltd v Zachary Kabucho Ndungu
    (Civil Appeal E032 of 2022) [2023] KEHC 17549 (KLR) (19th May 2023)
  • David Kihara Murage v Jacinta Karuana Nyangi and another
    [2015] eKLR
  • Mossy Khaemba Muchanga & Davis Wabwile Muchanga v Paul Lutoti Khawanga
    [2020] eKLR
  • Kenya Shell Ltd v Benjamin Kibiru & another
    1986 KLR 410
  • Machira T/A Machira & Company Advocates v East African Standard (No 2)
    2002 2 KLR 63
  • Antoine Ndianye v African Virtual University
    [2015] eKLR
  • James Wangalwa & another v Agnes Naliaka Cheseto
    [2012] eKLR
  • HA v LB
    [2022] eKLR
  • MFI Document Solutions Ltd v Paretto Printing Works Limited
    [2021] eKLR
  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
On appeal from
Chief Magistrate's Court at Bungoma
BGM CMCC No 584 of 2016
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act, Rules 22 and 4 of the Civil Procedure Rules, Order 42 Rule 6 of the Civil Procedure Rules and Article 159(2) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Sunrise Hauliers Limited v Motaroki (Appeal E019 of 2023) [2024] KEELRC 631 (KLR)", Case Analysis (2024). Not stated on the face of the ruling (arising from BGM CMCC No 584 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/631/eng@2024-02-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.