[2020] KESC 47 (KLR)

Konditi v Abson Motors Limited (Civil Application 25 of 2019) [2020] KESC 47 (KLR) (30 April 2020) (Ruling)

Dominic B.Onyango Konditi v Abson Motors Limited [2020] eKLR

Neutral citation: [2020] KESC 47 (KLR)

Republic of Kenya

In the Supreme Court of Kenya

Civil Application 25 of 2019

PM Mwilu, DCJ & V-P, DK Maraga, CJ, MK Ibrahim, SC Wanjala & I Lenaola, SCJJ

April 30, 2020

Between

Dominic B. Onyango Konditi

Applicant

and

Abson Motors Limited

Respondent

Ruling

A. Introduction 1. The applicant, through the firm of Lumumba & Lumumba Advocates, presented an application dated 5th August 2019 to the registry seeking stay of execution of the Court of Appeal judgment. However, for want of procedural compliance the Honourable Deputy Registrar of this Court declined to admit the same prompting the Advocates to forward the same through a letter dated 13th August 2019 and received on 14th August 2019 to the Honourable Deputy Registrar requesting for his formal communication and reasons for the refusal to admit the said application.

2. The said correspondence together with the application were forwarded to the duty Judge (Ibrahim SCJ) who declined to certify the application as urgent and noted, inter alia, that the applicant will have to persuade the court as to the procedure for initiating legal action in the Supreme Court. The duty Judge ordered that the matter goes through the normal process for hearing inter partes. Following these orders, the Honourable Deputy Registrar directed the applicant to file and serve the application within 7 days, and set a mention date to confirm compliance.

3. On 23rd August 2019, a day after the mention before the Honourable Deputy Registrar, the applicant’s counsel wrote to the Honourable Deputy Registrar advising that they shall not be filing the application for stay before this Court and requested to retrieve their application submitted to the registry. The Honourable Deputy Registrar directed the applicants to comply with the procedural steps of filing including payment of the filing fees before they can formally withdraw the application. The matter is now held in abeyance pending further action by the applicant through his counsel. There is no substantive petition on which the application is hinged or the basis for the intended appeal.

B. Analysis 4. Rule 7E (9) of this Court’s rules provides that pleadings shall be deemed to have been filed with the Court where all the relevant copies of the pleadings have been lodged in the registry and where applicable, the requisite fee has been paid. The applicant lodged the relevant copies at the registry and while the application was admitted, the applicant never sought to be excused and was never exempted from fulfilling the procedural steps including requirement as to the payment of the requisite fee in order to complete the lodging of the application. Since the applicant has also expressed intention to withdraw the application and the application cannot, in the present circumstances, be served upon the respondent, it is only just that the same be struck out for want of compliance with the procedural steps ab initio.

C. Determination 5. We therefore order that the application be struck out in its entirety for being a nullity ab initio. There shall be no order as to costs. Orders accordingly.

DATED and DELIVERED at NAIROBI this 30th Day of April, 2020. ............................ ........................D. K. MARAGA P. M. MWILUCHIEF JUSTICE & PRESIDENT DEPUTY CHIEF JUSTICE & VICEOF THE SUPREME COURT PRESIDENT OF THE SUPREME COURT............................ ...........................M. K. IBRAHIM S. C. WANJALAJUSTICE OF THE SUPREME COURT JUSTICE OF THE SUPREME COURT....................I. LENAOLAJUSTICE OF THE SUPREME COURTI certify that this is a true copy of the originalREGISTRARSUPREME COURT OF KENYA