[2022] KEHC 11880 (KLR)

Auto Industries Ltd v Njoroge & another (Civil Appeal E392 of 2021) [2022] KEHC 11880 (KLR) (Civ) (17 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11880 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E392 of 2021

JK Sergon, J

May 17, 2022

Between

Auto Industries Ltd

Applicant

and

Alice Wamaitha Njoroge

1st Respondent

Amos Ogutu Wandago

2nd Respondent

Ruling

1. The appellant/applicant in this instance has brought the Notice of Motion dated 5th July, 2021 supported by the grounds set out in its body and the facts stated in the affidavit of Kori Kent Musonera. The applicant sought for an order for stay of execution of the judgment dated on 4th June, 2021 and all consequential orders pending the hearing and determination of the appeal.

2. The respondent opposed the Motion by filing the replying affidavit sworn by 2nd respondent, Amos Ogutu Wandago on 11th March 2022.

3. When the Motion came up for interparties hearing the parties respective advocates chose to rely on the averments made in their respective affidavits.

4. I have considered the grounds laid out on the body of the Motion, the facts deponed in the affidavits supporting and opposing the Motion and the brief oral arguments.

5. The applicant averred that he was served with a third party notice seeking to enjoin them from participating in the suit CMCC E4367 of 2020, and that they submitted a memorandum of appearance, defense, list of witnesses, and accompanying documents, but that they were not assessed, and that when they followed up on the matter, they were told that the matter was never mapped in the system to include the applicant, making it impossible to file anything.

6. The applicant also avers that on May 28, 2021, at the small claims court, before the matter had progressed, he attempted to explain the challenge, but that his efforts were not welcomed, and the court categorically refused to hear nor accept any documents filed, instead setting a new hearing date.

7. The applicant contends that if the court had been allowed to hear them then their liability in the suit would have easily been established and be absolved from any liability, and that there were a lot of technicalities that made it impossible for the applicant to be fully represented and defended from irregularly transferring the matter from the chief magistrate’s court to the small claims court without notice.

8. The applicant stated that the 2nd respondent has already served them with a letter demanding payment of the decretal sum, and that they are concerned that the 1st respondent may have already instructed auctioneers to claim the same, and that the sale would jeopardize the proceedings already filed, rendering the same nugatory.

9. On their part the respondents opposed the application stating that this application has been overtaken by events because the 2nd respondent has paid the decretal sum of Kshs.198,164/=, and that the court had directed the appellant to serve the respondents herein with orders of stay of execution on July 8, 2021, which it failed to do, instead they served the respondents on February 24, 2022, after the 2nd respondent had already paid the decretal sum.

10. The 2nd respondent had instructed the auctioneers to claim the decretal sum who proclaimed the appellant’s goods on 7th January 2022 and proceeded to execute on 23rd February 2022 and that the appellant agreed to settle the decretal sum as evidenced in an agreement dated 23rd February 2022.

11. The 2nd respondent contends that he stands to suffer irreparable prejudice while the appellant has not demonstrated the substantial prejudice it will suffer as it has already demonstrated that it is capable of settling the decretal sum.

12. The background of this application appear to be short and straightforward. On 6th June 2021, the small claims court made a judgment in favour of the 1st respondent and that the applicant were served with a third party notice seeking to enjoin them to suit CMCC E4367 of 2020 but was unsuccessful for the reasons that the matter was changed to small claims court and that also his documents were not assessed too. Being aggrieved the appellant preferred an appeal seeking to impugn the aforesaid decision.

13. The 2nd respondent on the other hand has proved that he has already satisfied the decretal sum and that the plaintiff/1st respondent has already left.

14. The 2nd respondent has stated also that the applicant would not suffer substantial loss since the decretal sum has already been settled hence making this application to be overtaken by events.

15. Indeed, it is clear that the orders being sought by the applicant have been overtaken by events as the 2nd respondent has already paid the decretal sum, a fact which has not been controverted by the appellant and if this court were to grant the orders being sought, the same would be tantamount to issuing orders in vain, the futility of which is obvious.

16. The upshot of the foregoing is that the motion dated 5th July 2021 is without merit and the same is hereby dismissed with costs.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 17TH DAY OF MAY, 2022. ………….…………….J. K. SERGONJUDGEIn the presence of:……………………………. for the Appellant……………………………. for the Respondents