[2022] KEHC 15127 (KLR)

Radha Motors Ltd & another v Mutyota (Civil Appeal E012 of 2020) [2022] KEHC 15127 (KLR) (1 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15127 (KLR)

Republic of Kenya

In the High Court at Makueni

Civil Appeal E012 of 2020

GMA Dulu, J

November 1, 2022

Between

Radha Motors Ltd

1st Appellant

Shadrack Kiuwa Joseph

2nd Appellant

and

Elijah Kieti Mutyota

Respondent

Ruling

1. Before me is an application dated June 30, 2021 brought by the respondent under section 1A, 1B and 3A of the Civil Procedure Act (cap 21) and order 10 rule 11, order 50 rule 1, 3,4 and 10 of the Civil Procedure Rules, seeking orders that –1. The sum of Kshs 315,275/= guaranteed by Diamond Trust Bank on April 24, 2021 be forthwith released by the said bank to the respondent herein through his advocates on record Mulyungi & Mulyungi Associates advocates.2. That the record of appeal filed on May 24, 2021 and served on June 4, 2021 without leave of this court or extension of time by consent of the parties be expunged from record of this court.3. That the appeal herein be struck out with costs for non-compliance.4. That cost of the application be borne by the appellants.

2. The application was filed with a supporting affidavit sworn on June 30, 2021 by Dominic Mulyungi advocate for the respondent in which it was deponed that the appellants had not complied with the consent recorded in court by the parties on March 18, 2021, in which it was by consent recorded that –i.The appellants/applicants do pay the respondent half of the award of the trial court being Ksh 315,275/= and costs of the suit in the trial court of Kshs 123,590/= totaling Kshs 438,865/= within 30 days, of today.ii.The appellants do furnish a Bank Guarantee for the balance of Kshs 315,275/= within 30 days of today.iii.The appellants do compile, file and serve the record of appeal within 30 days of today subject to extension by an order of court or by consent of the parties and in default of any of the above conditions the orders herein stand automatically vacated, respondents be at liberty to execute for the balance due together with interest accrued and costs, and be at liberty to apply for striking out the appeal.

3. In response, the appellants filed a replying affidavit sworn on November 1, 2021 by Kelvin Ngure the Deputy Claims Manager of Directline Assurance Company Ltd in which they explained the causes of delay in complying with the consent orders, and also stated that the delay was not inordinate. In brief, they stated that the delay was occasioned by logistics in obtaining the Bank Guarantee and typed proceedings. They thus urge the court to dismiss the application.

4. On June 6, 2022, Mr Mulyungi for the applicant urged that the application be allowed while Mr Nganga for the respondent stated that they relied on the replying affidavit, and that they had already filed submissions to the appeal.

5. Having considered the application and documents filed, in my view the application has merits and is to be allowed.

6. The first reason why the application has merit is that it is not disputed that a consent by the parties was filed and adopted in court. The said consent has clear terms on what the appellant was to do and the time frames and the consequences of default. The appellant did not abide by the terms, thus the appeal purportedly filed is no appeal at all. Thus there is no appeal on record.

7. Due to their default, he only avenue open for the appellants was to seek leave of court for extension of time to comply or to agree with the respondent to vary the terms of the consent. The appellants have done neither, nor even attempted to do so. Instead, they have assumed that they have a valid appeal on record, and have proceeded to file written submissions to the appeal. That was a mistake. They should instead have started by regularizing the status of the appeal, and having it properly on record before proceeding further.

8. There being no valid appeal on record therefore, and there being no variation of the court recorded consent which was in the form of a contract between the parties, the application herein will succeed.

9. I thus allow the application dated June 30, 2021 and grant all the prayers sought therein. The purported appeal is thus struck out, with costs to the respondent/applicant

DELIVERED, SIGNED & DATED THIS 1ST DAY OF NOVEMBER, 2022, VIRTUALLY AT MAKUENI.………………………………….GEORGE DULUJUDGE