[2022] KEHC 2306 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISII

MISC. APPLICATION NO. 61 OF 2020

JULIUS MORARA MOKONO.....APPLICANT

VERSUS

ELVIS MARANGA....................RESPONDENT

RULING

1. On the 4th October 2021 the applicant was granted leave to file his appeal out of time against the judgment dated the 28th July 2020 within 14 days. He was also granted a stay of execution on condition that he deposits the judgment sum in a joint interest earning account in the names of both counsels within 30 days and in default the orders would be vacated and execution was to proceed. The matter was placed for mention on the 4th November 2021 to confirm compliance.

2. On the 4th of November 2021 counsel for the applicant informed the court that they had not forwarded the monies to the account as counsel for the respondent had failed to submit the requisite forms to enable them open a joint account. The applicant was informed that the orders of 4th October 2021 were clear and the file was marked as closed.

3. Following the said order, the applicant filed the Notice of Motion dated the 4th November 2021. The application is brought under Order 50 rule 6 and Order 51 Rule 1 of the CPR, 2010, Sections 1A, 1B, 3A and 95 of the CPA, Cap. 21 Laws of Kenya. The applicant seeks the following orders;

i. That pending the hearing and determination of the application inter-partes there be a stay of the Ruling delivered and /or Order of this court dated the 4th October 2021 requiring the applicant to deposit a sum of Kshs. 514,370 in a joint interest earning account within 30 days.

ii. That pending the hearing and determination of the application inter partes on the order of stay of execution of the judgment delivered on the 28th July, 2020 in Kisii Civil Suit No. 531 of 2018- Elvis Maranga vs. Julius Morara Mokono be issued.

iii. That the period granted for depositing part of the decretal amount granted to the applicant on the 4th October 2021, to deposit Kshs. 514,370/- in a joint interest account be enlarged and/ or extended to enable the applicant eventually prosecute and finalise the Appeal.

iv. That the applicant’s time in which to deposit part of the decretal amount in a joint interest account be enlarged to enable the Applicant provide a Bank Guarantee over (Kshs. 514,370/-) or be ordered to deposit the said sum in court within 30 days.

v. That costs be in the cause.

4. The applicant is supported by the grounds on the face of the application plus supporting affidavit of Billy Ndolo the applicant’s advocate. The application was opposed. Mr S. Ondari counsel for the respondent filed a replying affidavit dated the 22nd November 2021.

5. Mr. Ndolo averments in his affidavit can be summarised as follows; that following the court order dated 4th October 2021the wrote to the Respondent’s counsel on the 15th October 2021requesting him to sign the joint account opening forms and also requesting them to forward other documents. That the said forms were not signed and owing to that the joint interest earning account was not opened. That failure to comply with the conditions of stay within the requisite time has not been the fault of the applicant or their advocates and that the applicant is still willing to comply if ordered to provide a Bank Guarantee or deposit the amount in Court. That if the orders are not granted the Respondent will be at liberty to execute the judgment in Kisii Civil Suit No. 531 of 2018-Elvis Maranga vs. Julius Morara Mokono. That if the orders are granted there will be no prejudice to the respondent.

6. Mr. Ondari’s affidavit too can be summarised as follows; that the applicant has failed to comply with the stay conditions of depositing the decretal amount to enable them appeal out of time. That the applicant have not annexed the order which they seek to be reviewed and that this renders the instant application incompetent. That he has never refused or declined or failed to sign the consent forms opening the joint interest account. That there is no appeal pending nor filed as leave to appeal out of time was premised upon deposit of the decretal amount in a joint interest earning account, and that if an appeal was filed in court the same is not properly on record and should be rendered nugatory. That the file was closed and that there is no application to reopen the file and that the court has already rendered itself. That the court should not entertain an application brought under the wrong provisions of the law and that the application should be dismissed.

7. I have considered the oral submissions made by both counsels on the 29th November 2021. It is correct that the applicant was given a conditional stay and that he failed to comply with the stay order. The applicant has explained that there was a delay as a result of the respondent’s counsel failure to submit back the bank form. The respondent’s counsel denies this. This court has no way of establishing this issue as both parties have failed to demonstrate that they are not to blame for non-compliance.

8. The application is not for review of the order dated 4/10/2021. The applicant seeks a stay of the orders as his fears are that the respondents could proceed to execute. He also seeks an enlargement of the period to deposit the decretal sum.

9. The respondent has also raised issue with the order that the file was closed and that the applicant has failed to seek a specific order to reopen the file. The order for closure of the file was made after the applicant failed to comply with the conditional order. In my view the fact the court ordered that the file be closed does not bar the applicant from filing an application in the matter. This is a court of justice. To cause the applicant to file another miscellaneous application would be having multiple applications over the same issue. As a court of justice I find that no prejudice will be caused to the respondent if I determine the application. I set aside the order of file is closed and make the following orders;

10. The applicant is given the benefit for the delay in depositing the decretal sum in court. It is evident that the applicant is keen on pursuing the appeal. The applicant shall deposit the entire decretal sum of Kshs.514379/- in joint earning interest account within 30 days. Time is extended to a further 30 days from the date of this Ruling. A stay of execution to issue for 30 days. Mention on the 17/3/2022 to confirm compliance and further orders.

DATED, SIGNED AND DELIVERED AT KISII THIS 10TH DAY OF FEBRUARY, 2022

R. E. OUGO

JUDGE

In the presence of:

Miss Cheruiyot For the Applicant

Mr. Mokaya For the Respondent

Kevin Court Assistant