[2022] KEHC 16167 (KLR)

Cop-Rink Agencies & another v Kayser Investment Ltd (Civil Appeal E081 of 2021) [2022] KEHC 16167 (KLR) (Commercial and Tax) (9 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16167 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Civil Appeal E081 of 2021

A Mabeya, J

December 9, 2022

Between

Cop-Rink Agencies

1st Appellant

Jing Zhang aka JN Weibing

2nd Appellant

and

Kayser Investment Ltd

Respondent

Ruling

1. Before court is an application dated December 14, 2021 by the respondent. It was brought under sections 1A, 1B, and 3A of the Civil Procedure Act, cap 21, order 42 rule 14, and order 45 of the Civil Procedure Rules.

2. The application sought orders that the appellants had not met the conditions and terms set by this court on October 5, 2021 for granting a stay of execution. That those orders for stay of execution have lapsed. That the orders of October 5, 2021 be varied to have the Kshs 1 million deposited in the joint account on November 4, 2021 be deemed as security for costs.

3. The grounds for the application were set out on the face of the application and in the supporting affidavit of Dorothy Mbaye sworn on December 14, 2021.

4. It was contended that on October 5, 2021, the court gave orders of stay of execution in the lower court on condition that the appellants deposit Kshs 5 million in a joint interest earning account within 21 days which expired on October 26, 2021. That the appellants failed to comply and neither moved the court to enlarge time for compliance.

5. That the appellants only deposited Kshs 1 million in the joint account past the time allowed. That they failed to make any effort to have the Kshs 4 million held in the lower court transferred to the joint account. That the appellants were also ordered to file their record of appeal within 30 days which expired on November 3, 2021. That the appellants had not made any effort to obtain the typed proceedings and file the record as ordered.

6. That the orders of October 5, 2021 were clear that if the sum of Kshs 5 million was not deposited as ordered, the stay would lapse and execution could issue. That the applicant needed an order from this court confirming that the stay had lapsed. That the appellants had testified in the lower courts that they had no trading activity in Kenya, thus there was a danger that they were incapable of paying costs.

7. The appellants responded vide the replying affidavit of Weibing Jin sworn on December 2, 2021. It was contended that there was no indolence on the appellant’s part in opening the joint bank account. That it was the respondent’s advocates who failed to avail all account opening information and necessary documents in time. That they had failed to pay Kshs 1,200/= for conducting an official search causing the appellants to pay the fee.

8. It was further contended that the appellants’ advocates forwarded all their documents and information within the 21 day period. That one of the person’s listed as a partner in the respondent’s advocate firm was not a partner thereby causing further delay.

9. It was also contended that the respondent’s advocates caused the delays in opening the account and could therefore not blame the appellants’ for not enlarging time for compliance. That the appellant’s advocate immediately wrote to the account office, Milimani Commercial Court after the account had been opened seeking transfer of Kshs 4 million into the joint account as ordered by this court.

10. It was further contended that the appellants also immediately applied for and paid for certified copies of proceedings to prepare the record of appeal. That the appellants were capable of meeting the costs of the appeal, and delays in filing the record of appeal were caused by frustrations in the lower court.

11. The respondent filed written submissions dated July 22, 2022. The appellants submissions were not on the court’s record at the time of writing this ruling. This court has considered the entire record.

12. It is not in dispute that on october 5, 2021, this court ordered the appellants to deposit kshs 5 million into a joint interest earning account within 21 days. That the amount of Kshs 4 million held in the lower court would form part of that security and directed that it be released to the joint account. In default, execution was to issue. The appellants were also granted 30 days to file its record of appeal.

13. From the evidence before court, the appellants’ advocates sought for requirements on opening an account from ABC bank on October 15, 2021 and later forwarded the account opening documents to the respondent. They requested for relevant information vide letter dated October 18, 2021, and the same was responded to on October 22, 2021 forwarding the documents. The appellants’ advocate responded on November 3, 2021 stating that the respondent’s documents were incomplete but they would proceed with the account opening as the remaining documents were being sent.

14. There is correspondence between the parties as regards the account opening. It cannot be said that the appellants were indolent. They took action and maintained communication throughout. Indeed, there is evidence that the respondent delayed in furnishing all the necessary documents and forwarded a name of a person who was not a partner in the respondent’s advocate firm. This caused further delay as the firm’s resolution was necessary.

15. The account opening was done jointly, and this court finds no indolence or bad faith on the part of the appellants. In any case, when the account was finally opened on November 3, 2021, the appellants proceeded to deposit Kshs 1 million on November 4, 2021. The submission that the appellants should have made an application for enlargement is therefore rejected. That would only have caused further unnecessary delays.

16. Further, there is evidence that the appellants’ advocates wrote to the account’s office, Milimani Commercial Courts on November 5, 2021 requesting that Kshs 4 million be released to the newly opened joined account pursuant to this court’s orders. The respondent’s submission that the appellant had not made any effort to secure the release of the amount thus fails.

17. Contrary to the respondent’s averments, there is evidence that the appellants wrote to the executive officer of the lower court on September 15, 2021, October 7, 2021 and December 17, 2021 seeking certified copies of the relevant documents in order to file its record of appeal. The delay in filing the record was not a result of indolence on the part of the appellants as alleged.

18. This court finds no merit in the respondent’s application. In essence, the respondent is asking this court to abandon the order for the transfer of Kshs 4 million from the lower court to the joint account for no fault of the appellants.

19. In this regard, this court finds that though there were delays in complying with the orders of October 5, 2021, the delays cannot be entirely blamed on the appellants. They demonstrated diligence in ensuring compliance.

20. Accordingly, the application is without merit and is dismissed with costs. The appellants should take steps to file and prosecute the appeal now.

21. The order for stay of execution issued on October 5, 2021 remain in force.It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 9TH DAY OF DECEMBER, 2022. A. MABEYA, FCIARBJUDGE