https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7232

Kosgei v Skyline Sacco Society Ltd (Civil Appeal E250 of 2025) [2026] KEHC 7232 (KLR) (25 May 2026) (Directions) Neutral citation: [2026] KEHC 7232 (KLR) Republic of Kenya In the High Court at Eldoret Civil Appeal E250 of 2025 RN Nyakundi, J May 25, 2026 Between Theophilus Cheruiyot Kosgei Appellant and Skyline Sacco Society Limited Respondent Directions 1.Following the decision by the Small Claims Court, various applications were file by either the Appellant and the Respondent as can be seen shortly from the record. In the first instance, a Notice of Motion dated 13.10.2025 was filed seeking interim stay of orders from the ruling delivered on 9.10.2025 directing the release of the assets of the Applicant pending the hearing of the appeal. The application is supported by one Jonah Kimutai Korir who stated as follows in his affidavit:a.That I am the appellant's advocate hence competent to swear this affidavit on behalf of the appellant herein.b.That the appellant herein instituted claim against the respondent seeking compensation of his livestock wrongly attached by the respondentc.That upon being served with summons and or pleadings the respondent failed to defend the claim as such judgement was entered.d.That eventually execution was issued against the respondent where proclamation was done and eventually respondent's properties were attached.e.That on 10th /9/2025, the applicant applied for setting aside of the judgement on the basis that the respondent was not served. Annexed and marked J.K. 1 is a copy of the application.f.That the appellant opposed the application. Annexed and marked J.K. 2 is a copy of the replying affidavit.g.That on 9th/10/2025, Hon. R. Otieno delivered a ruling on the said application where the learned adjudicator observed;(a)That the respondent was duly served as such the judgement was regular.(b)That the setting aside of the judgement will cause prejudice to the claimant who approached the court expecting his case to be heard expeditiously.That there was no evidence that the proclamation notice was not properly served upon the 1strespondent prior to attachment. The application succeeds to the extent that the properties attached by the 2nd respondent as listed in prayer (b) of the application be unconditionally released. Annexed and marked J.K. 3 is a copy of the ruling.h.That the appellant is dissatisfied with the decision of the learned adjudicator ordering release the attached properties and have preferred an appeal against the said decision.i.That the appellant is dissatisfied with the finding of the adjudicator that proclamation was not affected and ignored evidence of the claimant who is replying affidavit even attached photographs showing the Auctioneer at the Respondents officers proclaiming the assets.j.That the release of the motor vehicle as ordered will occasion the appellant/applicant substantial loss in the sense that the appellant had already incurred a lot of expenses in terms of Auctioneer fees 2.This application was followed by another one dated 23.10.2025 seeking the following orders:-a.That in the interim, orders issued on be reviewed and or varied to the extent that Allan Mitei, the C.E.O of Skyline Sacco Ltd and Evans Kibet Kibwalei be ordered to immediately upon service surrender motor vehicle registration number KCG 256 V, Lenovo monitor, 1HP laptop,2 Kyocera printers to OCS, Eldoret police station pending hearing and determination of this application.b.That the court be pleased to substitute the appellant Theophilus Cheruiyot Kosgei with Rose Mary Chepkorir.c.That in the interim and in alternative to prayer 2, the managing director skyline Sacco ltd together with Evans Kibet kibwalei be ordered to deposit KSH 993,127/= in court or in a joint interest Account of advocates on record pending hearing of this applicationd.That Allan Mitei, the C.E.O, of Skyline Sacco Ltd and Evans Kibet Kibwalei DCI, langas police station and Inspector Francis Omuse of DCI Langas police station be summoned to court to show cause why they should not be cited for contempt and be committed to jail for contempt. 3.This was also followed by another application by way of a Notice of motion dated 27.10.2025a.Spent.b.There be stay of execution of the Orders and or Directions given by this Honorable Court on 24th October, 2025 in respect of the Application dated 23rd October, 2025pending the hearing and determination of this Application inter partes.c.Directions and or Orders given on 24th October, 2025 in respect of an Application dated 23rd October, 2025 be set aside and the Application dated 23rd October, 2025be heard de novo.d.Orders given on 15th October, 2025 and all consequential Orders be set aside and the Application dated 13th October, 2025 be heard de novo.e.Cost of this Application be provided for. 4.Grounds of the application:a.The Applicant was served with the directions given on 24th October, 2025 fixing the matter for Notice to Show Cause on 29th October, 2025.b.The Applicant instructed its Advocates to take up the matter.c.Upon perusal of the Court file, the Advocates discovered that an Application dated 13th October, 2025 was filed and Orders issued ex parte.d.An Affidavit of Service dated 21st October, 2025 was filed, which indicates that the said Application and Orders issued on 15th October, 2025 were allegedly served upon the firm of Emmanuel Kipkurui & Company Advocates via xxxx.come.The email address of the said firm of Advocates is xxxx.com and not xxxx.comf.The said Application and Orders were deliberately served upon the said email address, which is not the email address belonging to the said firm of Advocates so as to mislead the Court and obtain adverse ex parte Orders.g.The Application dated 13th October, 2025 is incompetent and fatally defective as the Appellant passed on in the year 2024 and had not been substituted.h.There was therefore no way the said Application would have been filed without an instructing party.i.That the Application dated 23rd October, 2025 was heard ex-parte and Orders issued ex-parte.j.By issuing ex parte Orders, the Court infringed on the Applicant and its C.E.O. and Operations Managers' right to a fair hearingk.That it is therefore just that the Directions issued in respect of the Application dated 23rd October, 2025 and Orders issued in respect of Application dated 13th October, 2025 be set aside and the said Applications be heard de novo.l.That the Appellant would not be prejudiced in any way as the Court in Eldoret SCCCNO. E414 of 2024 vide Ruling delivered on 9th October, 2025, gave the Appellant leave to proceed with execution afresh.m.This Honorable Court has the powers to grant the reliefs sought. 5.In support of the application is the annexed affidavit of Emmanuel Kipkurui who deponed as follows:a.That I have read the Application dated 23rd October, 2025 and the Supporting Affidavit sworn by Jonah Korir, Advocate and I wish to respond as hereunder;b.That all the contents of the said Supporting Affidavit are false and misleading.c.That the Applicant was served with the directions given on 24th October,2025 in respect of an Application dated 23rd October, 2025, fixing the matter for Notice To Show Cause on 29th October, 2025.d.That the Applicant instructed the firm of Emmanuel Kipkurui & Company Advocates to take up the matter.e.Upon perusal of the Court file, I discovered that an Application dated 13th October,2025 was filed and Orders issued ex parte.f.That I had not been served with the said Application dated 13th October,2025 or the Orders dated 15th October, 2025 as alleged at paragraph 4 of the Supporting Affidavit dated 23rd October, 2025 sworn by Jonah Korir.g.That the firm of Emmanuel Kipkurui & Company Advocates have never been served with the said Application and Orderh.That an Affidavit of Service dated 21st October, 2025 was filed, which indicates that the said Application and Orders issued on 15th October,2025 were allegedly served upon the firm of Emmanuel Kipkurui & Company Advocates xxxx.comi.That the email address of Emmanuel Kipkurui & Company Advocates is xxxx.com and not xxxx.comj.That the said Application and Orders were deliberately served upon the said email address, which is not the email address belonging to the said firm of Advocates, so as to mislead the Court and obtain adverse ex parte Orders.k.That the firm of Bundotich Korir & Company Advocates had previously served our firm using xxxx.com in Eldoret SCCC No. E414 of 2024 and therefore this is a clear indication of sharp practice and malice on their part.l.That the Applicant has never been served with any pleading in this matter, save for the Directions given in respect of the Application dated 23rd October, 2025.m.That the Application dated 13th October, 2025 is incompetent and fatally defective as the Appellant passed on in the year 2024 and had not been substituted.n.There was therefore no way the said Application would have been filed without an instructing party.o.That the Application dated 23rd October, 2025 was heard ex-parte and Orders issued ex-parte.p.By issuing ex parte Orders, the Court infringed on the Applicant, its C.E.O. and Operations Managers' right to a fair hearing.q.That it is therefore just that the Directions issued in respect of the Application dated 23rd October, 2025 and Orders issued in respect of Application dated 13th October, 2025 be set aside and the said Applications be heard de novo.r.That the Appellant would not be prejudiced in any way if the prayers sought are granted as the Court in Eldoret SCCC No. E414 of 2024 vide Ruling delivered on 9th October,2025, gave the Appellant leave to proceed with execution afresh. 6.In response to the application is the replying affidavit sworn by Jonah K. Korir who deposes as follows:a.That I am the appellant's advocate in this matter well versed with facts of the matter, hence competent to swear.b.That I have perused application by the respondent dated 27/10/2025, the affidavit in support and annextures thereto and wish to respond as hereunder.c.That the application is frivolous, vexatious, incompetent and an abuse of the court process.d.That the issue of service of application and orders upon the firm of Emmanuel Kipkirui does not arise as the same was served upon the respondents in person who in tum instructed the firm of Emmanuel Kipkurui to represent them.e.That the main issue is whether the orders of the court directing the respondents to surrender the attached items to O.C.S Eldoret as directed by the courtf.That in as much that the motor vehicle had been released to the respondent; the same was done in contempt of court.g.That in as much that the small claims court issued orders directing release of the vehicle and the other items, the orders of small claims court cannot supersede the orders of this court.h.That the application is an afterthought by the respondents to distort the harsh vagaries of contempt of court.i.That I am aware and alive to the fact that even if the initial appellant is deceased, the matter having reached an advanced stage of execution wherein the death would not affect execution proceedings as such substitution is not necessary. (See Machakos HCCA 15 of 2003 Muenikiamba vs Mbithi Kimeu Kimolo).j.That I thus pray that the application be dismissed. Directions 7.The three applications have been reviewed and incidentally the replying affidavit of Inspector Francis Omuse in paragraph 5 and 6 which states as follows:-a.That at the time of execution, the parties to the suit held discussions and amicably reached a settlement, whereby the auctioneers released the subject motor vehicle upon receipt of a payment of Kenya shillings Two Hundred and Twenty thousand (Kshs 220,000) (Annexed hereto and marked “FO-1 is a copy of the release letter.b.That in view of the forgoing, the Notice to show Cause issued herein is unwarranted, as the parties had already reached a compromise and the subject motor vehicle was duly released upon payment as agreed renders the pending application moot. The best this court can do is to have the file mentioned before the Deputy Registrar of the High Court to receive feedback as to whether there are any pending justiciable issues for a Judge to expend resources to adjudicate the appeal. 8.The Status Conference is scheduled for the 4.6.2026. GIVEN UNDER MY HAND AND THE SEAL OF THIS COURT THIS 25TH DAY OF MAY, 2026...........................R. NYAKUNDIJUDGERepresentation:Emmanuel Kipkorir & Co. AdvocatesBundotich Korir & Co. Advocates