[2025] KEHC 314 (KLR)

Co-operative Bank of Kenya Limited v Kojo alias Victor Brian Owino alias Brian Owino Kojo & another; Jenks Auctioneers (Interested Party) (Civil Appeal E026 of 2022) [2025] KEHC 314 (KLR) (16 January 2025) (Ruling)

Neutral citation: [2025] KEHC 314 (KLR)

Republic of Kenya

In the High Court at Bungoma

Civil Appeal E026 of 2022

REA Ougo, J

January 16, 2025

Between

The Co-operative Bank of Kenya Limited

Appellant

and

Owino Kojo alias Victor Brian Owino alias Brian Owino Kojo

1st Respondent

Khetia Drapers Limited

2nd Respondent

and

Jenks Auctioneers

Interested Party

Ruling

1. On the 30th of September 2024, judgment was entered against the appellant/applicant ( hereinafter referred to as the applicant). The applicant was granted a stay of execution from 30. 9.2024 for 30 days. On the 25. 10. 2024 the applicant filed an application seeking various orders. The application is brought under sections 1A, 1B, 3A of the Civil Procedure Act and Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules and all other enabling provisions of the law.

2. The applicant is seeking the following orders:i.spentii.pending the hearing and determination of the application inter partes there be a stay of execution of the judgment delivered on 30th September.iii.a stay of execution of the Judgment delivered on the 30th of September 2024 pending the hearing and determination of the Application dated 24th October 2024 filed in Kisumu COACAPPL/E154/ 2024 The Cooperative Bank of Kenya Limited -vs- Owino Kojo alias Victor Brian Owino alias Brian Owino Kojo, Khetia Drapers Limited and Jenks Auctioneers.iv.That there be a stay of execution of the judgment delivered on 30th September 2024 pending the hearing and determination of the intended Appeal.v.That the costs of the application be in the cause.

3. The application is supported by the affidavit of Lucy Muthama a legal officer. The application was opposed. I have read the rival affidavits and the submissions filed by the parties. There is no dispute that a party seeking to appeal before the High Court seeks a stay of execution before the High Court, and moves the court under Order 42 Rule 6 of the Civil Procedure Rules. From the applicant’s affidavit, the judgment was read on the 30th of September 2024 and thereafter the court gave a stay of execution for 30 days. My understanding of this process is that the applicant was seeking the stay order to be granted either to pay the judgment sum or proceed to the Court of Appeal for a stay order A reading of prayer 3 of this application indicates that the applicant filed an application before the Court of Appeal Kisumu COAAPPL/E154/2024 which I believe is pending before the Court of Appeal. This application was filed on 24. 10. 2024.

4. The applicant seeks a stay of execution of the judgment on the 30th of September 2024 pending the hearing and determination of the application dated 24. 10. 2024 filed in Kisumu COAAPPL/ E154/2024. In my view, this court lacks the jurisdiction to grant stay orders on an application pending before the Court of Appeal. This applicant was granted 30 days of execution after delivery of the judgment. The applicant should move to the Court of Appeal to prosecute the pending application. The interim orders granted at this interlocutory stage are therefore set aside.

5. The 1st respondent has raised the issue of the validity of the Notice of Appeal. The court record shows that the Notice was filed on 23. 10. 2024. In my view, it is the Court of Appeal with the jurisdiction to determine the validity of the said notice. In my previous ruling, I noted that a notice of appeal was filed but this court cannot determine the validity of the said Notice of Appeal.

6. I therefore dismiss the application dated 25. 10. 2024, with each party to bear its costs.

DATED SIGNED AND DELIVERED AT BUNGOMA THIS 16TH DAY OF JANUARY 2025. R.OUGOJUDGEIn the presence of:Miss Jumba h/b Miss Aluvale For the ApplicantMr. Kojo For the 1st Respondent & Interested Party2nd Respondent - Absent