[2023] KEHC 24836 (KLR)

Agri Tunza Limited v Onespot Agencies Limited (Civil Appeal E133 of 2023) [2023] KEHC 24836 (KLR) (30 October 2023) (Ruling)

Neutral citation: [2023] KEHC 24836 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal E133 of 2023

FROO Olel, J

October 30, 2023

Between

Agri Tunza Limited

Applicant

and

Onespot Agencies Limited

Respondent

Ruling

A. Introduction 1. The application before this court is the Notice of Motion application dated 10th July 2023 brought pursuant to provisions of section 1A, 1B, 3 and 3A of the Civil Procedure Act, order 11 rule 3 and order 51 rule 1 of the Civil Procedure Rules and all other enabling provision of law. Prayers 1 and 2 of the said application are basically spent and the main prayer sought is that;a.That this appeal be consolidated with Machakos High court civil Appeal No 133 of 2023 and or that the appeals be heard together.b.That the stay orders in this appeal, Machakos High court civil Appeal No 36 of 2023 to apply to Machakos High court civil Appeal No 133 of 2023 pending hearing and determination of both appeals.c.That costs of this application be provided for.

2. The application is supported by the grounds on the face of the said application and the supporting affidavit of Mirrium Ngina dated 10th July 2023. The applicant states that there were two suits filed in the small claims court by the respondent as against the appellant being Machakos Sccomm E218 of 2022, which has given rise to Machakos HCCA No E036 of 2023 and Machakos SCCOMM E299 of 2022, which has given rise to Machakos HCCA No 133 OF 2023.

3. Further in Machakos SCCOMM No 218 of 2022, judgment was entered in favour of the respondent for Kshs.885,097,000 plus cost’s and interest, while in Machakos SCCOMM No 299 of 2022 Judgement was entered in favour of the respondent for Ksh.784,840/= plus costs and interest. This court had already granted stay pending appeal orders in Machakos HCCA No E036 of 2023 and directed that the title deeds of parcels No Kajiado/Kitengela/45657 and Kajiado/Kitengela/45658 be deposited in court as security, pending hearing and determination of the said appeal. The value of both decrees was approximately Kshs.2,000,000/= and the value of the security was worth Kshs.3,000,000/=.

4. The applicant urged this court to consolidate the two appeals and have them heard and determined together, as the parties were the same and that would be in the best interest of all parties and expediency. The applicant further deponed that unless stay was granted in MachakoS HCCA No 133 of 2023, the respondent would proceed to attach and cause them substantial loss and that would lead to miscarriage of justice and render the appeal filed to be nugatory.

5. The respondent did not file any Grounds of opposition or Replying Affidavit in opposition to this application

Analysis & Determination 6. I have carefully considered the Application, Supporting Affidavit, and the only issue for determination is whether the Appellant has met the conditions necessary for granting stay of execution under order 42, rule 6 of the Civil procedure rules and if the security deposited in Machakos HCCA No E036 of 2023 is sufficient to cover for security in this appeal.

7. The respondents did not oppose this application and by virtue of Order 51 rule 14 of the civil procedure rules the said application is deemed unopposed. Be that as it may with regard to the order of consolidation of these appeals, even though the parties are the same, both matters appealed against arose from different commercial transactions and two different decree were issued. Consolidating the said matters would muddle the water and would not achieve the desired result. The best option would be to order that both appeal files to run concurrently and the said appeals be heard together.

8. As regards the issue of stay of execution pending appeal, a determination had already been made by this court on 3rd May 2023 and the appellant was directed to deposit in court Title deed for parcel No Kajiado/Kitengela /45657 and Kajiado /Kitengela /45658 as security pending hearing and determination of the appeal, and indeed the same was done. The valuation of the said properties was carried out by Procost Valuers Ltd and they did place the commercial value at Ksh.3,000,000/= for both parcel and forced sale value for the said parcels at Kshs.2,250,000/=. That would be adequate to cover for both decrees.

B. Conclusion 9. Given that this application is not opposed, I do order as followsa.The two appeals Machakos HCCA No E036 of 2023 and Machakos HCCA No 133 of 2023 will be heard concurrently.b.The terms as to security as granted in Machakos HCCA No. 036 of 2023 vide the Ruling dated 3rd May 2023 will apply herein mutatis mutandis as the securities are adequate to cover both decrees.c.The costs of this application is awarded to the Respondent.

10. It is so ordered.

RULING WRITTEN, DATED AND SIGNED AT MACHAKOS THIS 30TH DAY OF OCTOBER, 2023. FRANCIS RAYOLA OLELJUDGEDelivered on the virtual platform, Teams this 30th day of October, 2023. In the presence of;…………………………………for Applicant………………………………….for Respondents………………………………….Court Assistant