[2022] KEHC 12068 (KLR)

Anthony Ochieng Onyango & another v Rose Akinyi Kasera [Suing As A Legal Representative Of Eliakim Osiro Ondura-Deceased (Civil Appeal E015 of 2022) [2022] KEHC 12068 (KLR) (13 July 2022) (Ruling)

Neutral citation: [2022] KEHC 12068 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Civil Appeal E015 of 2022

KW Kiarie, J

July 13, 2022

Between

Anthony Ochieng Onyango

1st Applicant

Motorology Limited

2nd Applicant

and

Rose Akinyi Kasera [Suing As A Legal Representative Of Eliakim Osiro Ondura-Deceased

Respondent

Ruling

1. The applicants and who are the appellants herein moved the court by way of notice of motion dated April 8, 2022. The application is brought under sections 3, 3A & 100 of the Civil Procedure Act & Order 22 rule 22, Order 42 rules 4 & 6, Order 50 rule 4, and Order 51 rule 1 of theCivil Procedure Rules. The applicants are seeking the following orders:a.That this matter be certified urgent and heard ex parte in the first instance and service thereof be dispensed with; [Spent]b.That this honourable court be pleased to order a stay of execution of the judgment/decree dated February 2, 2022 vide Oyugis SPMCC No 189 of 2019 Rose Akinyi Kasera (suing as the legal representative of the estate of Eliakim Osiro Ondura) v Anthony Ochieng Onyango and Motorology Limitedpending the hearing and determination this application inter partes.c.That thishonorable court be pleased to order a stay of execution of the judgment/decree dated February 2, 2022vide Oyugis SPMCCNo 189 of 2019, Rose Akinyi Kasera (suing as the legal representative of the estate of Eliakim Osiro Ondura) v Anthony Ochieng Onyango and Motorology Limited pending the hearing and determination Homa Bay HCCANo 15 of 2022. d.That the honorable court be pleased to order that the applicant to furnish security in form of a Bank guarantee for the sum ofKshs1, 242,960/- pending hearing and outcome of the appeal herein.e.That the costs of this application abide the outcome of the appeal.

2. The application is premised on the following grounds:a.Judgment herein was entered on February 2, 2022vide Oyugis SPMCCNo 189 of 2019 for sum of kshs 1, 242,960/- plus costs and interest at court rates.b.The appellants/applicants being dissatisfied with the said judgment have preferred an appeal on liability and quantum and filedmemorandum of appeal.c.It is trite law that an appeal does not operate as stay and the applicants movable properties are thus exposed to execution and saled.It is apparent there is an impending threat of execution by the respondent against the applicants as the stay granted is set to lapse anytime from now.e.That the appellants/applicants appeal has high chances of success.f.The appellants/applicants’ are apprehensive that the respondent may levy execution against the appellants/applicantsg.That the judgment is of substantial amount and the appellant/applicants are apprehensive that if the respondent proceeds to execute against appellants/applicants and thereafter the appeal is successful, the appellants might not recover the same from the plaintiff/respondent.h.Unless stay of execution is granted, and the respondent levy and/or executes the said judgment of February 2, 2022 the appellant/applicants’ appeal will be rendered nugatory and the appellant/applicant will suffer irreparable loss ant damage.i.The appellants/applicants are ready, willing and able to furnish such reasonable security in form of a bank guarantee for the full decretal sum or as thishonorable court may deem fit.j.That the appellants/applicants filed an application in the lower court and the court gave directions on March 30, 2021to the effect that half of the decretal sum be paid to the respondent and half be deposited in a joint account yet the appeal is on liability and there is no way the appellants will recover the decretal amount if the appeal is successful.k.This application is made in good faith and will not occasion any prejudice to the plaintiff/respondent.l.That the respondent will not be prejudiced in any way if the application is allowed.

3. The application was opposed and the respondent on the following grounds:a.That the trial court allowed a similar application on March 30, 2022on terms which the applicant has not complied with.b.That this is an abuse of the due process.

4. When there is a subsisting order of a court of competent jurisdiction, it amounts to forum-shop to seek similar orders from another court. This is an abuse of the due process of the court.

5. I have read the order of the trial court dated March 30, 2022and the applicants if aggrieved ought to have appealed and not to approach the court in the manner they did.

6. The application is therefore dismissed with costs.

DELIVERED AND SIGNED AT HOMA BAY THIS 13TH DAY OF JULY, 2022KIARIE WAWERU KIARIEJUDGE