[2022] KEHC 16277 (KLR)

Njuguna & another v Agumba & another (Civil Appeal E139 of 2022) [2022] KEHC 16277 (KLR) (Civ) (15 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16277 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E139 of 2022

JN Mulwa, J

December 15, 2022

Between

Samuel Njuguna

1st Applicant

Samuel Kimani Kuhinya

2nd Applicant

and

Benson Otieno Agumba

1st Respondent

Winnie Otieno Agumba

2nd Respondent

Ruling

1. The Applicants herein by their application dated April 25, 2022 seek two orders;1. Stay of execution of the trial court’s ruling delivered on the 8th of August 2021; and2. Stay of proceedings in the trial court pending hearing and determination of the appeal.

2. Reliance is placed on the provisions of order 21 rule 18, order 22 rule 22; order 46 rule 6 and sections 1A, 1B and 3A of the Civil Procedure Rulesand Act respectively.Ms Gulenywa Advocate swore the supporting affidavit on the 25th of April 2022 stating numerous grounds in support of the orders sought.

3. In opposing the application, the respondents filed grounds of opposition dated May 10, 2022. The applicants also filed submissions dated October 1, 2022.

4. In their oral arguments before me on the 7th of July 2022, the respondents took issue with the applicants that the orders sought to be stayed were not provided to the court. They did not file their submissions as directed on the 7th of July 2022.

5. I have considered the parties’ pleadings. There are only two issues for consideration;a.Whether the orders for stay of execution of the trial court’s ruling delivered on the 8th of August 2021 ought to be granted;b.Whether the trial court’s proceedings ought to be stayed pending hearing and determination of the appeal.

6. The impugned ruling dated August 8, 2021 has not been provided to this appellate court.I have looked at the grounds of appeal as stated in the Memorandum of Appeal filed on the 11th of March 2022. It is shown that the appeal is against the ruling of the trial court delivered on the 1st of March 2022. This ruling is also not provided to this court.

7. In the instant application under review, dated April 25, 2022, at prayer number 2, the impugned ruling is stated to have been delivered on August 8, 2021, and as stated earlier, it is not provided to this court.The contents of the orders (both) are not known to this court. Grounds of objection number 1 and 2 speak of orders issued by the trial court whose contents are also not stated; the said orders not stated as the ones referred to by the applicants as delivered on the 1st of March 2022 or August 8, 2021; but stated as concerning the admission of documents during the hearing of the suit.

8. By the applicants’ submissions dated October 1, 2022, the trial court orders are those delivered on the 8th of August 2021. In the circumstances, this court is called upon to interrogate the trial court’s ruling delivered on the 8th of August 2021; whose content and purport is also not within this court’s reach and knowledge. Is the applicant urging the court to call for the trial court file, peruse through to identify the said ruling? I decline to do so.

9. It was upon the applicant to provide this court all material facts relevant to the application to enable it to interrogate and determine the application, with knowledge.The court is unable therefore to issue an order of stay of execution nor stay the proceedings before the trial court.

10. I have looked at the appeal. It is against an order delivered on the 1st of March 2022 while the application seeks stay of execution of an order delivered on the 8th of August 2021.

11. In the premises, I am constrained to dismiss the application dated April 25, 2022 for lack of clarity and specifity. The said application is dismissed with costs to the respondents.

Orders accordingly.Dated, Delivered and Signed in Nairobi this 15thday of December, 2022. J. N. MULWAJUDGE