[2022] KEHC 10518 (KLR)

Laico Regency Hotel v Quality Meat Packers (Civil Appeal E194 of 2021) [2022] KEHC 10518 (KLR) (Civ) (17 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10518 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E194 of 2021

JK Sergon, J

June 17, 2022

Between

Laico Regency Hotel

Appellant

and

Quality Meat Packers

Respondent

Ruling

1. Quality Meat Packers, the respondent herein, took out the motion dated 21st February 2022 whereof it sought for the following orders inter alia:a.The dismissal of this appeal as it is an abuse of the court process.b.This appeal be ordered struck out as it has been overtaken by events.

2. The respondent filed the affidavit sworn by Gideon Nakhone in support of the motion. When served with the motion, Laico Regency Hotel filed the replying affidavit sworn by Jamal Ahmed to oppose the motion. Parties filed written submissions to dispose of the motion.

3. I have considered the grounds stated on the face of the motion and the facts deponed in the rival affidavits. I have further considered the rival written submissions.

4. It is the submission of the appellant applicant that this court granted an order of stay of execution of the decree of the trial court on condition that the appellant deposits the decretal sum of ksh.8,055,429 in an interest earning account in the joint names of learned advocates appearing in the appeal within 30 days in default the order for stay shall be deemed as having been refused meaning the orders issued by the trial court shall persist.

5. The respondent pointed out that the appellant failed to comply with the condition for the grant of stay therefore the trial court’s order persisted. It is said that the respondent proceed to amend its plaint thus enjoining two parties namely Libya Africa Investments Co. trading as Laico Regency Hotel as the 2nd defendant and Libya Investment Co. trading as Ledger Plaza Hotel as the 3rd defendant.

6. It is further pointed out that the two newly enjoined parties were served with the summons to enter appearance plus the amended plaint who in turn entered appearance and filed their defences. It is the submission of the respondent therefore that this appeal no longer serves any useful purpose as the newly enjoined parties are already parties in the suit in the trial court where they can raise their issues before that court.

7. In sum the respondent is of the submission that this appeal has been overtaken by events since the parties who are the subject of the instant appeal are already parties in the primary suit and can therefore raise the issue of joinder before the trial court. It is argued that the trial court is unable to proceed with the suit in a lawful manner given the existence of this appeal which is now an impediment to those proceedings. This court was urged to dismiss the appeal.

8. The appellant on its part opposed the motion stating that the appeal was lodged against the ruling of Hon. D. W. Mburu, learned Senior Principal Magistrate and that the lapse of the stay meant that the impugned ruling of Hon. D. W. Mburu would stand.

9. The appellant further argued that if the appeal turns successful then the ruling of Hon. D. W. Ndungu would be set aside with costs of the appeal being born by the respondent and that the case would revert to the status quo ante the ruling which was that there were no interim orders.

10. The appellant further pointed out that the respondent took the course of action with the intention to render the appeal as an academic exercise by amending the plaint to remedy the very flaw challenged through this appeal.

11. The appellant urged this court to instead allow the appeal instead of striking it out. It is said that if the appeal is ordered struck out it will amount to a miscarriage of justice as the appellant will be denied the right to a fair hearing that had been denied at the lower court.

12. Having considered the rival arguments it is not in dispute that on 24th June 2021 this court issued an order for stay of execution of the orders issued on 1st April 2021 pending appeal on condition that the appellant deposits the sum of ksh.8,055,429/= in an interest earning account in default the order for stay would lapse automatically. Hon. D. W. Mburu issued the following orders inter alia vide his ruling delivered on 1st April 2021i.An order is hereby issued freezing the accounts of Laico Regency Hotel pending the hearing of the suit.ii.An order of interlocutory injunction is issued to restrain Laico Regency Hotel from transferring, alienating, charging getting rid of and or in any way disposing of its properties to 3rd parties or moving them outside the jurisdiction of the court pending the hearing of the suit.

13. In the aforesaid ruling the trial magistrate also noted that Laico Regency Hotel transferred the ownership of the hotel to the intended 2nd and 3rd defendants namely Libya Arab Investments Co. trading as Laico Regency Hotel and Libya Arab Investment Co. trading as Ledger Plaza Hotel.

14. There is no dispute that the order for stay of execution issued by this court on 24th June 2021 automatically lapsed at the expiry of 30 days upon the failure by the appellant/applicant to meet the condition to sustain the stay order.

15. This appeal is against the ruling of 1st April 2021. The appellant has accused the trial court of enjoining some parties in the primary suit without affording them an opportunity to be heard before joinder. It is also apparent that upon the automatic lapse of the stay orders the respondent proceeded to amend its plaint and enjoined two new parties as mentioned hereinabove. The aforesaid parties were served with court process and have since then entered appearance and filed their defences.

16. I am persuaded by the respondent that this appeal has been overtaken by events. The issues raised in this appeal are similar to those raised in the amended plaint before the trial court.

17. In the end, I find the respondent’s motion dated 21st February 2022 to be meritorious. The same is allowed. Consequently, this appeal is ordered struck out on the basis that the same is overtaken by events.

18. Having struck out the appeal, I find no need to belabor considering the appeal on its merits. In the circumstances of this appeal, a fair order on costs is to order which I do that costs shall abide the outcome of the suit before the trial court.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 17TH DAY OF JUNE, 2022. J. K. SERGONJUDGEIn the presence of:……………………………. for the Appellant……………………………. for the 1st and 2nd Respondents