[2021] KEHC 6631 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITALE

MISCELLANEOUS CIVIL APPLICATION NO. 9 OF 2021

KITALE TREATMENT WORKS LIMITED...........................APPLICANT

VERSUS

SHIKUNGA LIMITED............................................................RESPONDENT

RULING

The Applicant, Kitale Treatment works Ltd, was aggrieved by the decision of the trial Magistrate in Kitale CMCC No. 3 of 2017 wherein judgment was entered in favour of the Respondent, Shikunga Limited. The Applicant filed an appeal to this court in Kitale HC Civil Appeal No 3 of 2020. Pending the hearing of the appeal, the Applicant filed an application before the trial Magistrate seeking orders of stay of execution of the Judgment and decree pending the hearing of the Appeal. The application was allowed but on condition that the Applicant deposits the sum of Kshs 6,750,000/= in a joint-interest earning account in the names of the advocates on record within forty five (45) days from the date of the Ruling. Dissatisfied with the decision, the Applicant lodged the present application.

This court wondered why the Applicant did not file this application in the Appeal instead of filing the same under a Miscellaneous cover. Maybe there are reasons for the adoption of the procedure. That is an issue that will be addressed another day. Suffice for this court to state that the Applicant desires the said order requiring it to deposit the said sum of Kshs 6,750,000/= pending the hearing of the appeal set aside and substituted with an appropriate order that may accord to its sense of Justice. Of particular import is the allegation by the Applicant that it was condemned unheard before the trial Magistrate rendered the decision that is being challenged. The Applicant states that it has an appeal that has a very good chance of success and therefore prayed for the order of stay sought to be granted.

The Application is opposed. The Respondent filed grounds in opposition to the Application. A replying affidavit was also filed. In essence the Respondent states that the Applicant has been guilty of indolence in that he filed the present application nearly fifteen (15) months after the decision was rendered by the trial Magistrate. It was of the view that the application herein was filed with a view to frustrating the Respondent from enjoying the fruits of the Judgment rendered in its favour. It urged the court not to be persuaded by the argument put forward by the Applicant but instead look at the Applicant’s conduct and render an appropriate ruling. The Respondent was of the view that the Applicant had not put forward cogent reasons to entitle this court vary or set aside the ruling of the trial Magistrate.

During the hearing of the application, this court heard oral rival submission made by Mr. Kisa for the Applicant and by Mr. Ambutsi for the Respondent. They basically reiterated the contents of the pleadings filed by their clients in supporting their respective cases.

Under Order 42 Rule 6(2) of the Civil procedure Rules;

“ No order of stay of execution shall be made under sub rule (1) unless –

a) The court is satisfied that substantial loss may result to the Applicant unless the Order is made without unreasonable delay; and

b) Such security as the court may order for the due performance of such decree or order as may ultimately be binding on him has been given by the Applicant”.

In the present application, it was clear to the court that indeed the Applicant will suffer substantial loss if stay of execution is not granted. This court cannot make comments regarding the Applicant’s claim that it has an appeal on merit that will likely succeed. The proceedings of the trial court was not availed to this court for the court to make such finding. Suffice for this court to state that the Applicant should be given a chance to exercise its right of appeal if dissatisfied with the decision of the trial Magistrate’ court.

Although the Respondent is justified in stating that the Applicant is guilty of laches in that it filed the application after undue delay, in the interest of justice, this court is convinced that the grant of the order of stay of execution pending the hearing of the Appeal is merited.

In the premises therefore, an order of stay of execution pending the hearing of the Appeal is granted on condition that the Applicant deposits in a reputable bank sum of Kshs 2,000,000/= in an interest earning account in the joint names of the advocates on record. The said deposit shall be made within thirty (30) days of today’s date, failure of which the order of stay granted shall stand vacated and the Respondent shall be at liberty to execute. The costs of the application shall be borne by the Applicant in any event.

DATED AT KITALE THIS 3RD DAY OF JUNE 2021.

L. KIMARU

JUDGE