[2022] KEHC 2642 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. E152 OF 2019

JOHN NJIHIA KIMANI.................................................1ST APPELLANT/APPLICANT

WILLIAM KIPNGETICH KOECH.............................2ND APPELLANT/APPLICANT

VERSUS

GRACE WANGARI MAINA (Suing as the personal representative of the estate of

PEER WITHIGA MAINA (Deceased)....................................................RESPONDENT

RULING

1) The appellants/applicants took out the motion dated 24. 11. 2021 in which they sought for the following orders;

i. THAT the honourable court be pleased to certify this application urgent and the same be heard ex pare in the first instance and service be dispensed with.

ii. THAT this honourable court be pleased to grant leave to the firm of Ngaywa & Kibet Partners LLP to come on record for the appellants in place of the firm of Kairu & MCcourt Advocates.

iii. THAT this honourable court be pleased to issue an order for stay of execution of the decree issued in Milimani CMCC no. 2993 of 2017 Grace Wangari Maina (suing as the legal representative of the estate of peter Withiga Maina (Deceased) Vs. John Njihia Kimani & William Kipngetich Koech on 20th February, 2019 pending the hearing and determination of this application.

iv. THAT this honourable court be pleased to order for stoppage of sale with respect to the applicant’s movables proclaimed/attached particularly motor vehicle registration number KBH 383P by Icon Auctioneers pending the hearing and determination of this application.

v. THAT this honourable court be pleased to review/set aside the orders of 20th May, 2021 or in the alternative be pleased to re-instate the applicants/appellants instant appeal.

vi. THAT this honourable court be pleased to issue an order for stay of execution of the decree issued in Milimani CMCC no. 2993 of 2017 Grace Wangari Maina (Suing as the legal representative of the estate of Peter Withiga Maina (Deceased) Vs. John Njihia Kimani & William Kipngetich Koech pending the hearing and determination of this appeal.

vii. THAT the costs of this application be provided for.

2) The motion is supported by the affidavit sworn by Chepngetich Cicely. The applicants were permitted to prosecute the motion exparte when the respondent failed to file a response or attend court for interpartes hearing.

3) It is the submission of the applicants that the respondent was awarded a sum of ksh.4,329,430/= by the trial court. It is also stated that being dissatisfied with the aforesaid judgment, the appellants preferred this appeal to challenge the award. It is also pointed out by the appellants that they were represented by the firm of M/s Kairu & MCcourt Advocates at the time of the judgment.

4) It is further pointed out that the insurers paid a sum of ksh.3m of the decretal sum leaving a balance of ksh.1,329,430/= together with costs and interest.

5) The appellants also averred that on 22nd September 2021, the 2nd appellant’s motor vehicle registration no. KBH 383P was attached by Icon Auctioneers in execution of the decree. They aver that they were not aware that there existed an appeal forcing them to file misc. Application no. E512 of 2021 to seek for enlargement of time to file an appeal out of time and to seek for stay of execution.

6) The appellants also averred that they were not aware that the appeal was lodged and later demised. This court was urged not to let the shortcomings of their erstwhile advocate to be visited upon them. They further averred that their former advocate did not update them on the progress of the matter.

7) The respondent did not controvert the averments put forward by the appellants.

8) The record shows that this appeal was dismissed for want of prosecution upon the application dated 8th May 2021 which was filed by the respondent. The application came up for interpartes hearing on 20th May 2021. The appellants did not file any response neither did they attend court for interpartes hearing.

9) This court is now being urged to set aside the dismissal order. It is argued that the appellants’ former advocates did not inform the appellants of the existence of the appeal.

10) It is clear from the material placed before this court that the firmof Kairu & MCcourt Advocates represented the appellants having been instructed by the appellants’ insurers by virtue of the doctrine of subrogation.

11) Those advocates though representing the insurer are also regarded as advocates for the insured (the appellants). There is no explanations as to why the aforesaid advocates did not attend court nor respond to the respondent’s application.

12) The appellants have now beseeched this court to set aside the order dismissing the appeal and to thereafter reinstate the appeal. I find the plea by the appellants convincing. The appellants’ former advocates let down the appellants.

13) Consequently, I find the motion dated 24. 11. 2021 to be meritorious. It is allowed thus giving rise to issuance of the following orders:

i. The order allowing the motion dated 5th May 2021 is hereby reviewed and set aside.

ii. The motion dated 5th May 2021 is reinstated together with the appeal and the appellants are given a chance to respond to the motion within 7 days from the date of this ruling.

iii. Parties to file and exchange written submissions within 14 days from the date of service of the appellants’ response.

iv. An order for stay of further execution of the decree pending appeal and the hearing of the reinstated application.

v. Costs of the application to abide the outcome of the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 4TH DAY OF FEBRUARY, 2022.

………….…………….

J. K. SERGON

JUDGE

IN THE PRESENCE OF:

……………………………. FOR THE APPELLANT

……………………………. FOR THE RESPONDENT