[2023] KEHC 23340 (KLR)

Olalo v Omuron (Suing as Legal Representative of the Estate of Paul Orado, Deceased) (Civil Appeal E007 of 2023) [2023] KEHC 23340 (KLR) (13 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23340 (KLR)

Republic of Kenya

In the High Court at Busia

Civil Appeal E007 of 2023

WM Musyoka, J

October 13, 2023

Between

Thomas Wandera Olalo

Appellant

and

Hellen Omuron (Suing as Legal Representative of the Estate of Paul Orado, Deceased)

Respondent

(Being an application for injunction and or stay of the orders of the Chief Magistrate’s Court pending the lodging hearing and determination of an intended appeal from the ruling of Hon. EA Nyaloti, Chief Magistrate, CM, delivered on 9th March 2023, in Busia CMCCC No. 30B of 2019. )

Ruling

1. I am determining a Motion, dated 15th March 2023, which principally seeks stay of execution of the decree in Busia CMCCC No. 30B of 2019. The grounds, upon which it is premised, are on the face of the Motion, and the facts on which it is predicated, are set out in the affidavit sworn in support, by the appellant, on 15th March 2023.

2. The background is that a decree was obtained by the respondent, against the appellant, in Busia CMCCC No. 30B of 2019. The judgment was delivered on 15th February 2022, and there was a review of it on 29th March 2022, to correct errors on the face of it. No appeal was preferred against the said judgment. Instead, the appellant filed a Motion, in Busia CMCCC No. 30B of 2019, dated 30th November 2022, seeking to have the insurer of the accident vehicle compelled to settle the decree. That application was dismissed, in a ruling delivered on 9th March 2023. It is the orders, that were made in that ruling, that the appellant is aggrieved about, hence these proceedings. The appellant expresses apprehension that the respondent may move to have the decree executed. He has filed a notice of appeal against the ruling of 9th March 2023.

3. The application is opposed. There is an affidavit in reply, sworn by the respondent, on 15th May 2023. It is averred that the insurer had paid part of the decretal amount, and that the application, that culminated in the orders of 9th March 2023, was filed only after the respondent instructed auctioneers to levy execution to recover the balance. It is argued that that application was designed to deny the respondent the balance of the decretal amount. It is asserted that the appellant did not meet, in that application, the threshold for grant of stay of execution.

4. Directions were given on 15th May 2023, for canvassing of the application, dated 15th March 2023, by way of written submissions. Both sides have complied, for they have filed their respective written submissions, and I have read through them, and noted the arguments made.

5. Should I grant the orders sought? I do not think so. In the first place there is no appeal against the judgment of the court in Busia CMCCC No. 30B of 2019. There is no appeal even against the orders of 9th March 2023. The instant proceedings relate to the orders of 9th March 2023. The said orders are incapable of execution. The application, that the trial court was determining, was for stay of execution and for orders against the insurer. The application was dismissed. No orders were made relating to execution. The orders of 9th March 2023 did not require the respondent to do anything, or to take any steps to execute the decree. The court merely dismissed the application. The orders of 9th March 2023 are, therefore, not capable of execution, and so there would be no basis for grant of stay of execution of those orders.

6. What is capable of execution is the decree arising from the judgment in Busia CMCCC No. 30B of 2019. There is no appeal, whether filed or intended, against that decree. There would be no basis, in the circumstances, of staying execution of that judgment, when the said judgment is not subject to the intended appeal herein. Even if an appeal was intended against the said judgment, the appellant is way out of time, as the judgment was pronounced on 15th February 2022, and the 30 days, within which an appeal against that judgment should have been filed, have expired, leave to appeal out of time has not been obtained, and has not been sought in the application the subject of this ruling.

7. In the application, dated 30th November 2022, the subject of the ruling of 9th March 2023, the appellant sought stay orders and orders to compel the insurer to settle the decree. The appellant raised no issue with the decree, by way of expressing dissatisfaction with it, to warrant an appeal being filed against it, and what he wanted was an order directed at the insurer of the accident vehicle to settle the decree. Stay was sought to afford time to the insurer to pay. Unfortunately, the insurer was not party to the suit in Busia CMCCC No. 30B of 2019, and no orders could be made against a person or entity that was not party to the suit. In any event, if the appellant wanted to have the insurer compelled to make good the decree, he should have initiated a declaratory suit against it. The application, dated 30th November 2022, was, no doubt, misconceived, to that extent, and was doomed to fail. The prayer for the stay order was pegged on orders being made against the insurer, and as none were forthcoming, the stay order was not available.

8. In view of what I have stated above, there can be no merit in the Motion, dated 15th March 2023. It is for dismissal, and I hereby dismiss the same, with costs. The interim orders, for maintenance of status quo, made on 22nd March 2023, are hereby vacated. Orders accordingly.

RULING IS DELIVERED, DATED AND SIGNED IN OPEN COURT AT BUSIA THIS 13 TH DAY OF OCTOBER 2023W MUSYOKAJUDGEMr. Arthur Etyang, Court Assistant.AdvocatesMr. Masiga, instructed by Masiga Wainaina & Company, Advocates for the appellant.Ms. Nekesa, instructed by Ndalila & Company, Advocates for the respondent.