[2019] KEHC 5194 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT NAKURU

CIVIL APPEAL NO. 58 OF 2013

MILLING CO-OPERATION OF KENYA

(2009) LIMITED..................................APPELLANT/APPLICANT

-VERSUS-

SAMUEL MUCHAI NJUGUNA

T/A WAMU STORES.........................................1ST RESPONDENT

RAHAB WAMBUI T/A WAMU STORES......2ND RESPONDENT

FRANCIS MURIUKI MURAGURI

T/A LUSOI STORES.........................................3RD RESPONDENT

RULING

1. There are two applications before me.

The 1st one was filed by the 3rd Respondent, Francis Muriuki Muraguri t/a Lusoi Stores on the 25th March 2019.

The Respond seeks costs on the dismissed appeal, relying on the Order by Mativo J on a notice to show cause why the appeal should not be dismissed, it is dated 28th January 2019.

2. The application is premised on provisions of Order 42 Rule 35 Civil Procedure Rules and Sections 3A, 99 and 80 of the Civil Procedure Act. It is averred that as there was no compliance by the Appellant of the Court Order dated 28th January 2019, the Appeal stood dismissed, 45 days from the said order. On that ground, the 3rd respondent sought costs of the Appeal and those of the primary suit in the sum of Kshs.186,260/= deposited in court as security for costs, and further order for the release of the said costs to the 3rd Respondent.

3. The Respondent/Appellant by a replying affidavit filed on the 3rd April 2019 opposed the application on grounds that circumstances did not allow the appellant to comply with court orders of the 28th January 2019.

4. The second application was filed by the appellant on the 5th April 2019, a day after submissions were taken on the 1st application.

It is brought under Order 45 Rule 1, 22 rule 22 and Section 3A, 63(e) of the Civil Procedure Act.

The Appellant sought an order to arrest and suspend the ruling in respect of the 3rd respondent’s application – (the 1st application) due on 11th July 2019, and in the main, an order to review, vary and/or set aside the court orders dated 28th January 2019, and thereafter reinstate the appeal, by extending the time within which the appeal should be fixed for hearing.

5. It is supported by a supporting affidavit sworn by the Advocate Jimmy Aggrey Simiyu and grounds stated at the face of the application.

6. At the hearing of the first application on the 20th June 2019 both parties agreed that as the two applications are closely related, that a ruling on both may be delivered on the 11th July 2019.

7. I have considered submissions on both applications by the rival parties’ advocates.

The issue to settle at the first instance is whether as at the 5th April 2019 when the applicant filed its application for review and/or varying of the orders dated 28th January 2019 (Mativo J) whether there was a competence appeal on record, upon which the application could be anchored. It read

1. That the court is inclined to grant the Appellant one chance to prosecute their case

2. The accordingly, I order the appellant to fix their case for hearing within 45 days from today in default the same shall stand dismissed.

8. In my understanding of my brother Judge Orders, 45 days lapsed on the 13th March 2019.

Therefore the Appeal stood dismissed on the 13th March 2019 midnight. That is the submission by Mr. Kanyi Advocate for the 3rd Respondent, before the application for review or varying of the said orders was filed on the 5th April 2019. In the circumstances, it is evident that there was no appeal on record as at the 5th April 2019, meaning that the said application had no legs upon which it could stand on.

9. I agree with the 3rd respondent that the application is incompetent and an abuse of the court process.

I need not go into the reasons advanced for the prayer for vacation of the orders as doing so would be acting in a vacuum.

10. Had the appellant filed its application before the expiry of the 45 days given in the order, the court would have considered the grounds and perhaps grant the extension of time sought to fix the appeal for hearing.

11. It is worth to note that the appellant had prior to the said order been granted sufficient time to progress its appeal without any fruitful action taken. The appeal was filed in 2013 and was listed for Notice to Show Cause why it should not be dismissed for want of a prosecution under Order 42 Rule 35 (2) several times.

In the circumstances, I am persuaded to dismiss the appellant’s application with costs to the 3rd respondent upon reasons I have rendered above.

12. Back to the notice of motion dated 25th March 2019, the 1st application. The appeal being the basis of the orders of stay of execution pending hearing and determination is already dismissed. It follows that the said orders given under Nakuru High Court Miscl. Application No. 81 of 2013 on the 15th March 2013must be vacated, there being no appeal on record.

Consequently the judgment and consequential orders in the primary suit, Nakuru CMCC No. 252 of 2011 ought to be actualized in favour of the 3rd Respondent.

13. The decretal sum together with costs and interest in the sum of Kshs.186,260/= was deposited in court as security for the due performance of the decree by a court order issued on the 19th March 2013 (Wendoh J).

This is the amount that the 3rd respondent by its prayer No. 2 seeks to be released to itself.

Given the circumstances above, there is no reason to deny the 3rd Respondent fruits of its judgement.

14. I proceed to allow the 3rd Respondent’s application dated 25th March 2019 in its entirety with costs. In the result, the Deputy Registrar of this court is directed and ordered to release the sum deposited in court in the sum of Kshs.186,260/= to the 3rd Respondent’s advocates Kanyi Ngure & Company Advocates.

The 3rd Respondent shall have the costs of the Application from the Appellant.

It is so ordered.

Signed, delivered and dated at Nakuru this 11th Day of July 2019.

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J.N. MULWA

JUDGE