[2023] KEHC 25424 (KLR)

Wekanywa v Wamalwa Simiyu & Co Advocates (Miscellaneous Application E109 of 2018) [2023] KEHC 25424 (KLR) (17 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25424 (KLR)

Republic of Kenya

In the High Court at Bungoma

Miscellaneous Application E109 of 2018

DK Kemei, J

November 17, 2023

Between

Martin Khaemba Wekanywa

Applicant

and

Wamalwa Simiyu & Co Advocates

Respondent

Ruling

1. The application before me is a notice of motion brought under certificate of urgency dated 7th February, 2023 and amended on 21st March,2023, pursuant to Article 40 of the constitution, section 3A of the Civil Procedure Act, Order 40 Rules 1, 2, 3, 4 and 10, Order 45 of the Civil Procedure Rules seeking the following orders;a.Spentb.Spentc.That pending the hearing of and determination of the application the court be pleased to order the summoning of the court process server one David Imo for purposes of being cross-examined by the applicant’s counsel.d.That pending the hearing of the suit inter-partes, the Court be pleased to issue an order compelling the 1st respondent from harassing the Applicant.e.The costs of the application be borne by the Respondent.

2. The same is supported by an affidavit sworn by the Applicant who averred inter alia; that the Respondent through a firm of Auctioneers have been harassing him intending to execute a decree dated 26th October,2022 which emanated from an application dated 10th May,2019 whose service is highly disputed; that he stands to suffer irreparable damage if the court does not intervene; that he seeks to be granted a chance to defend himself as he was not given an opportunity due to falsehoods of the process server.

3. The Respondent in opposition averred that the Applicant was duly served with the court documents as he was represented by his advocate on record; that the Auctioneer is immune to the proceedings by virtue of section 6 of the Judicature Act as it was executing lawful warrants which have not been challenged, recalled or set aside; that there is no illegality attributed to the Auctioneer and thus the application is an abuse of the court process and which should be dismissed.

4. In their submissions dated 25th August,2023 the Respondent submitted that the orders as sought by the Applicants were against the court which is mandated to execute its decrees. Reliance was placed in the case of Michael Bartenge vs. Stephen Bartenge (2007)eKLR. Counsel submitted that the Applicant ought to have sought for stay orders and setting aside of the impugned decree since the calling of a process server for the purposes of cross examination would not have any effect and would be engaging the court in an academic exercise unless the decree is stayed/lifted.

5. I have considered the application and submissions. The history of the matter is that the Respondent filed an advocate-client bill of costs dated 24th June,2018 which was taxed off at Kshs.145,234/= and a certificate of costs issued on 22nd March,2019. The Respondent thereafter filed an application dated 10th May,2019 seeking to have the certificate of costs converted to a decree for purposes of execution. The application was allowed in the absence of the Applicant herein on 26th October,2022 after the court satisfied itself of service of the application upon the Applicant herein. As a result, the Respondent herein proceeded to execute the decree. I find that the issue for determination is whether the applicant is entitled to the reliefs sought.

6. The Applicant in his application sought for orders that the application be certified as urgent and for orders restraining the Respondent from auctioning his property which orders were granted in the interim. Further, the Applicant sought for an order summoning the Court process server for purposes of cross-examination pending hearing and determination of the application which order was not granted in the interim. The last two prayers were orders restraining the respondent from harassing the Applicant and a prayer for costs.

7. It is clear from the foregoing prayers that the Applicant is not seeking any orders beyond the inter parties hearing stage. Put differently, the applicant is not seeking any order to preserve any property or threatened legal or equitable right pending the hearing and determination of the instant application. I am aware that disputes will always arise during the execution stage in any litigation, but in the instant application none has been disclosed.

8. In Re Estate of Bakari Marakweli Mwakwisha (deceased) (2008)eKLR it was held:“I am afraid the applicant did not seek any orders which may be granted. His only substantive prayer was for the grant of an interlocutory injunction pending the hearing and determination of this application. That order was granted at the time when the application was certified urgent. It was to be in force pending the hearing and determination of the application. Once the application is heard and determined, that order will have served its purpose, and there will be nothing more to be done. Strictly speaking, indeed, there is no prayer to be heard. The applicant ought to have included a prayer for an injunction pending the hearing and determination of the petition for the grant of letters of administration intestate. But such injunction was not applied for, and the court cannot grant an order which is not prayed for.”

9. Even looking at the “orders” as sought without a substantive prayer, the application is misconceived and incompetent as any relief sought can only be granted if there is pending a substantive prayer, and that there is not one such in this application. Even so the prayer for orders restraining the Respondents from harassing the Applicant has not been substantiated. Clearly, the application is devoid of the requisite prayers which could act as an anchor. As it is, the orders sought are only ideal at the ex-parte stage but not the next stage as the same will have become spent. If that is the position, then there is nothing substantive for this court’s deliberation. As framed by the applicant, the orders are to subsist until the determination of the application interpartes. The applicant must be informed that we are now at the interpartes hearing stage and that the orders sought are deemed to have served the purpose and as such there is nothing that the court can deliberate upon. Again, it is noted that the application stems from an execution of decree process. As the applicant has not sought for an order of stay of execution of the decree, it is untenable to stop the executioner from carrying out its lawful duties. I find the prayers are not capable of being granted and that if the same is granted, the next question facing the applicant will be ‘’what next?’’

10. In view of the foregoing observations, I come to the finding that the application is devoid of merit. The same is dismissed with costs to the Respondent.It is so ordered.

DATED AND DELIVERED AT BUNGOMA THIS 17TH DAY OF NOVEMBER 2023D.KEMEIJUDGEIn the presence ofNo appearance Motanya ApplicantOnyando for Wamalwa Simiyu for RespondentKizito Court Assistant