[2023] KEHC 26011 (KLR)

Mugo & another v Opiyo (Civil Miscellaneous Application E538 of 2022) [2023] KEHC 26011 (KLR) (Civ) (1 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26011 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Miscellaneous Application E538 of 2022

AN Ongeri, J

December 1, 2023

Between

Dancun Wagura Mugo

1st Applicant

Stephen Muiruri

2nd Applicant

and

Collins Ouma Opiyo

Respondent

Ruling

1. The application coming for consideration in this ruling is the one dated 10/3/2023 brought under Article 50(1) and 159(2) (a) (b) (d) and (e) of the Constitution of Kenya 2010, Order 51 Rules 1 and 15 of the Civil Procedure Rules 2010, Section 1A, 1B and 3A of the Civil Procedure Act seeking the following prayersi.That this application be certified urgent, service be dispensed with thereof and the same be heard ex parte in the first instance.ii.That the order of the honourable court made on 8th March 2023 dismissing the application dated 6th September 2022 be set aside, reviewed and /or varied.iii.That the application dated 6th September 2022 seeking leave to file appeal out of time and consequent stay of execution of the judgment/decree obtained from Milimani CMCC NO. 1811 of 2019 be reinstated.iv.That this honourable court be pleased to stay the execution of the judgment/decree obtained herein pending the full hearing and determination of the appellants/applicants application herein.v.That the costs of this application be in the cause.

2. The application is based on the following grounds on the face of it as follows;i.That this honourable court had issued directions on filing of submissions to canvass the application dated 6th September 2022 on the 25th January 2023. ii.That the advocate who was handling the matter at that time left the firm without issuing a proper hand over report.iii.That the counsel who came to replace him noted that submissions herein are yet to be filed when he reviewed this file, and proceeded to prepare the submissions and issued instructions for filing.iv.That however the inadvertence to prepare the submissions and its subsequent discovery was made a day before the matter was scheduled to come to court for confirmation of filing submissions.v.That the honourable court proceeded to dismiss the application for want of compliance with the orders issued on the 25th January 2023. vi.That the inadvertence of previous counsel on record is highly regretted and we are remorseful to court about the same.vii.That we pray that court in the interest of justice allows this present application and proceeds to hear and determine the application dated 6th September 2022 on its merits.

3. The respondent filed a replying affidavit sworn by Musili Mbiti in which he deponed that judgement in Milimani CMCC 1811 of 2019 was delivered in favor of the respondent and the applicant and their insurance were notified of the same.

4. The applicants had filed another application dated 6/9/2022 which they failed to prosecute and was dismissed for lack of compliance with the orders issued on 25/1/2023. The applicants’ sole intention is to delay finalization of this matter and they are not interested in bringing this matter to finalization. He indicated that it was only after he tried to enforce the respondent’s rights by instructing auctioneers so as to recover the judgement sum when the applicants filed this application trying to delay the matter.

5. The parties filed written submissions as follows; the respondent submitted that when the Applicants' Application dated 6/9/2022 came before court on 8/3/2023. The Appellants were adamant that the Applicants’ written submissions were in court record. This was confirmed not to be true. To unlock the court’s Discretion there has to be valid, clear and verifiable reasons, upon which discretion can be favorably exercised.

6. The applicants’ allegation has been generated only to misled the court and thus an injustice to the respondent. the respondent argued that the applicants are engaged in a tactical and strategic scam of frustrating the respondent herein by filing application after another with a sole intention of defeating justice and/or delaying payment of the decree and as such denying the respondent an opportunity to enjoy fruits of his judgment.

7. The issue for determination is whether the application dated 6/9/2022 should be reinstated for hearing and determination.

8. The notice of motion dated 6/9/2022 was dismissed on 8/3/2023 for failure to comply with court orders.

9. I find that the respondent cannot suffer prejudice that cannot be compensated by an award of costs.

10. I allow the application under the following terms;i.That the applicant pay thrown away costs of Kshs.10,000/=.ii.That parties are granted 14 days each to file and serve submissions starting with the applicant.iii.Failure by the Applicant to comply the Application to stand automatically dismissed for want of prosecution.iv.The applicant to bear the costs of this application.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 1ST DAY OF DECEMBER, 2023. A. N. ONGERI………….…………….JUDGE