[2022] KEHC 10513 (KLR)

Sukari Industries Limited v Kasera (Civil Appeal E038 of 2021) [2022] KEHC 10513 (KLR) (14 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10513 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Civil Appeal E038 of 2021

KW Kiarie, J

June 14, 2022

Between

Sukari Industries Limited

Applicant

and

Tom Omollo Kasera

Respondent

Ruling

1. The appellant/applicant moved the court by way of Notice of Motion dated 7th march, 2022. It was brought under sections 1A, 1B, 3A & 63 (e) of the Civil Procedure Act & Order 42 Rule 6 of the Civil Procedure Rules. The applicant is seeking the following orders:a.That this application be certified as urgent and be heard ex parte in the first instance. [Spent]b.There be interim stay of execution of the judgment and decree of the subordinate court, between the parties herein, in Homa Bay PMCC No. 134 of 2019, between the parties, pending hearing and determination of this application inter partes.c.That there be a stay of execution of the judgment and decree of this court in this appeal and of the judgment and decree of the subordinate court, between the parties herein, in Homa Bay PMCC No. 134 of 2019, between the parties, pending hearing and determination of this applicant’s intended appeal in the Court of Appeal from the judgment and decree of this court dated and delivered on 28th February,2022d.The costs of this application be provided for in the intended appeal.

2. The application was premised on the following grounds:a.That the applicant has lodged a Notice of Appeal against the judgment of this court delivered on 28th February, 2022. b.That a stay of execution was issued for a period of 30 days on 28th February, 2022. c.That the respondent has commenced execution.d.That the intended appeal has high chances of success.

3. The respondent opposed the application on the following grounds:a.That this application has not been brought in good faith and is only being used by the applicant to delay execution.b.That the applicant after filing this application and having failed to obtain interim orders went on to file a similar application before the sub-ordinate court which has so far been heard pending ruling on 18th May 2022. c.That the Subordinate Court’s application seeks for similar orders of stay as this (annexed exhibit marked TOK-01).d.That further to that in the subordinate court’s application the applicant sought for orders that it be allowed to settle the decretal sum in installments up to 12 months. (Paragraph 6 of Notice of Motion annexed exhibit marked TOK-01).e.That the applicant is not being honest in his application by alleging that the respondent contravened the court order that granted 30 days under paragraph 2, 3, 4, 5, and 6 of his Notice of Motion. As the applicant is very aware that the orders for stay were for the High Court Decree and did not deter the respondent in any way from executing the lower Court’s Decree.f.That the applicant was much aware of that the stay was only limited to the High Court’s decree the same reason why it filed the instant application hence the allegations of the respondent defying court order is only but an initiative to hoodwink the court.

4. This application is an abuse of the due process of the court. The applicant cannot be seeking same orders for the subject matter in two different courts.

5. Josephine Onyambu and Kenindia Assurance Company Ltd. Are not party to this case and the former’s affidavit has therefore no relevance.

6. In the subordinate court, the applicant is seeking to make payments by 12 instalments. I read mischief when the same applicant is seeking for stay of execution.

7. This kind of practice ought to be discouraged for not only is it an abuse of the due process, it is a clear manifestation of forum shopping.

8. Consequently, I dismiss the application with costs.

DELIVERED and SIGNED at HOMA BAY this 14thday of June, 2022KIARIE WAWERU KIARIEJUDGE