[2022] KEHC 16619 (KLR)

Makunyi v Odhiambo & another (Civil Case 20 of 2017) [2022] KEHC 16619 (KLR) (Civ) (17 June 2022) (Ruling)

Neutral citation: [2022] KEHC 16619 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case 20 of 2017

DO Chepkwony, J

June 17, 2022

Between

Samwel Kijogi Makunyi

Plaintiff

and

John Lawrence Odhiambo

1st Defendant

Standard Media Limited

2nd Defendant

Ruling

1. Vide a notice of motion application dated April 8, 2021, the applicant is principally seeking for an order of stay of execution of the orders made on March 25, 2021 pending hearing and determination of the appeal.

2. The application is founded on the grounds on its face and the depositions in the supporting affidavit of Millicent Ng’etich sworn on April 8, 2021. It is stated that Lady Justice Kamau delivered judgment in the suit herein in favor of the plaintiff for kshs 3,000,000. 00 on October 31, 2018 which decision the applicant was dissatisfied with and filed a notice of appeal on December 13, 2018. He then went ahead to request for certified copies of proceedings vide a letter dated January 15, 2019. That on February 4, 2019, the parties herein recorded a consent for stay of execution pending the hearing and determination of the intended appeal on condition that the applicant deposits the decretal sum in a joint interests earning account in the names of the advocates for the parties herein which the applicant did at NCBA Bank, A/C No 1006618576 at kma centre branch. it is also stated that the applicant inadvertently failed to follow up on their request for certified proceedings and consequently, the respondents filed an application dated March 9, 2020 seeking to vacate the consent orders and which application was allowed on March 25, 2021 by Hon Lady Justice Thuranira (as she then was). The applicant contends that he is dissatisfied with the orders of this court of March 25, 2021 and intends to appeal against them hence this application. It is further contended that the Respondent is likely to commence execution proceedings and render the intended appeal nugatory. It is thus in the interest of justice that the instant application is allowed.

3. The application is opposed vide the replying affidavit of David Kimakia sworn on May 9, 2021. , wherein it is stated that after the trial court delivered Judgment in favor of the respondent on October 31, 2018, the applicant did not file an appeal or for review of the same until the respondents served him with the letter dated November 29, 2018 requesting for approval of the draft decree and which letter triggered their filing of an application dated December 6, 2018 seeking leave to file a notice of appeal out of time. That the said application was disposed of by a consent dated February 4, 2019 and consequently, the applicant filed a letter dated February 13, 2019 requesting for typed proceedings for purposes of prosecuting the appeal. That after this, the applicant remained unmoved and unwilling to prosecute the appeal. further,vide a letter dated October 23, 2019, the respondents wrote to the deputy registrar requesting for the typed proceedings and paid the requisite deposit. That the deputy registrar notified the respondent of the readiness of the proceedings for collection by the parties vide a notice dated December 13, 2019. The respondent also wrote to the applicant on the same videa letter dated December 16, 2019 and attached the deputy registrar’s notice. That thereafter, the applicant did not take any action to prosecute the appeal, a clear indication that he has no intention or commitment to prosecute the appeal, hence this application is an abuse of the court process. Further, that the court made the decision to set aside the consent order based on facts and merits of the application. That the excuse by the applicant that the delay was caused by Covid-19 cannot stand since the proceedings were ready in December, 2019 before the first case was confirmed in Kenya. It is contended that the application has partly been overtaken by events and rendered nugatory since the decretal sum was transferred to the respondent on March 29, 2021 and what remains to be executed is costs. It is further contended that the application is a protracted abuse of the court process and the respondent continues to be deprived of the fruits of the judgment. it is the respondent’s prayer that the application herein be dismissed with costs in the interest of justice.

4. By consent of parties the application was canvassed by way of written submissions which are dated June 3, 2021, June 10, 2021 and July 2, 2021.

Determination 5. To determine the application dated April 8, 2021, I have read and considered the grounds upon which it is premised, the replying affidavit and submissions filed by the parties.

6. The applicant herein is seeking to stay execution of the orders of this court made in favor of the respondent on March 25, 2021 and set aside the consent orders of February 4, 2019. At paragraph 26 of their replying affidavit, the respondent deposed that the said orders have been complied with and the decretal sum that was held in the joint interest-earning account were released to the respondent on March 29, 2021. I have perused the annexure marked as “DKM 9” indicating and confirming that kenya shillings three million, four hundred and twelve thousand, one hundred and ninety-nine and seventy cents (kshs 3,412,199. 70) which is the decretal sum that was transferred to Kimakia Magara and Partners LLP, the advocates for the respondents herein.

7. Owing to the execution of the orders of March 25, 2021 being executed by the transfer of the decretal sum to the respondent, this court cannot issue the orders sought in vain since the same have been overtaken by events.

8. It is trite law that court orders cannot be issued in vain. If there was substantial loss (if any) to be suffered by the applicant, the same has already been suffered and the stay orders will be inconsequential as the application has already been overtaken by events. There is no need for the court to further pronounce itself on the question of stay. Reliance is placed in the case of KalyaSoiFarmers Cooperative Society v Paul Kirui& Another[2003] eKLR, where it was held;“As is said, “Equity, like nature, will do nothing in vain.” On the basis of this maxim, courts have held again and again that it cannot stultify itself by making orders which cannot be enforced or grant an injunction which will be ineffective for practical purposes. If it will be impossible to comply with the injunction sought, the court will decline to grant it.”

9. I find that the application herein has been overtaken by events and is therefore lacking in merit. The application be and is hereby dismissed with costs to the respondents.

It is hereby so ordered.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED IN NAIROBI THIS…17THDAY OF JUNE 2022. D. O. CHEPKWONYJUDGEIn the presence of:Mr. Gathuri counsel for Applicant/DefendantNo appearance for Plaintiff/RespondentCourt Assistant - Kevin