[2022] KEHC 2385 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL APPEAL NO. 206 OF 2019

RANJEET SINGH CHODA...................................................APPELLANT/RESPONDENT

-VERSUS-

FREDRICK KANG’ETHE KINUTHIA.......................1ST RESPONDENT/APPLICANT

DAVID MBUGUA WAWERU.................................................................2ND RESPONDENT

MOSES NJOROGE..................................................................................3RD RESPONDENT

RULING

1. Fredrick Kang’ethe Kinuthia, the 1st respondent/applicant herein (“the applicant”), took out the Notice of Motion dated 26th October, 2021 and sought for an order to the effect that the stay of execution order made on 28th May, 2020 be vacated.

2. The Motion is supported by the grounds presented on its face and the facts stated in the affidavit of the applicant’s advocate, Lucy K. Waweru.

3. To resist the Motion, advocate C. K. Kiplagat swore a replying affidavit on 11th December, 2021 on behalf of the appellant/ respondent (“the respondent”).

4. When the Motion came up for interparties hearing before the court on 14th December, 2021 the parties’ respective advocates chose to rely on the averments made in the supporting and replying affidavits. The advocate for the 3rd respondent supports the Motion, while the 2nd respondent did not file any documents in reply thereto nor participate at the hearing.

5. I have considered the grounds laid out on the face of the Motion; and the facts deponed in the affidavits supporting and resisting the Motion.

6. The sole issue for determination before me is whether to vacate the order for a stay of execution currently in place.

7. In her supporting affidavit, Lucy K. Waweru states that judgment was entered by the trial court on 14th March, 2019 vide Milimani CMCC No. 6098 of 2011 in favour of the applicant and the 3rd respondent and against the respondent.

8. The deponent states that since obtaining an order for a stay of execution of the abovementioned judgment, the respondent has not taken any steps in prosecuting his appeal and hence the stay orders ought to be vacated.

9. In reply, C.K. Kiplagat states on behalf of the respondent that the delay in prosecuting the appeal has been occasioned by the fact that the respondent’s advocate is yet to be supplied with the certified copies of the proceedings and judgment to enable the compiling and filing of the record of appeal.

10. The deponent therefore urges that the instant Motion be dismissed with costs.

11. Upon my perusal of the record, it is apparent that the respondent filed his memorandum of appeal on 11th April, 2019 at the High Court to challenge the aforementioned judgment.

12. Upon my further perusal of the record, I observed that immediately thereafter, the respondent lodged the application dated 12th April, 2019 and sought for an order for stay of execution pending the hearing and determination of the appeal against the aforementioned judgment; and that upon hearing the parties, the court in its ruling delivered on 28th May, 2020 granted an order for a stay of execution on the condition that the respondent deposits the sum of Kshs.931,658/ in court and thereafter deposits an equal sum in an interest earning account in the joint names of the parties’ advocates/firm of advocates within 30 days therefrom.

13. Going by the averments made by the respondent and in the absence of any arguments to the contrary, it is apparent that the above conditions have been complied with.

14. I note that various correspondences are annexed to the replying affidavit of C.K. Kiplagat supporting the explanation given by the respondent for not compiling and filing the record of appeal or prosecuting the appeal, and which explanation I find to be reasonable in the circumstances.

15. Going by the record, it is apparent that directions are yet to be given in respect to the appeal and consequently, the appeal is yet to be set down for hearing. There is also nothing to indicate that the Deputy Registrar has since listed the appeal before a judge for dismissal.

16. More importantly, I have established from the record that the lower court file has not been made available to this court which therefore means that it would not have been possible in any event for the appeal to be admitted and/or prosecuted in absence of the file.

17. In the premises, I find the Motion dated 26th October, 2021 without merit, the same is ordered dismissed with no order as to costs.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 11TH DAY OF FEBRUARY, 2022.

.........................

J. K. SERGON

JUDGE

In the presence of:

...................................... for the Appellant/Respondent

................................ for the 1st Respondent/Applicant

............................................... for the 2nd Respondent

.................................................for the 3rd Respondent