AMOS MWANIKI &Microfilm; Equipment Ltd V SENATOR CARDS LIMITED [2012] KEHC 4475 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MILIMANI LAW COURTS

CIVIL APPEAL NO. 675 OF 2011

AMOS MWANIKI..................................... 1ST APPLICANT

MICROFILM EQUIPMENT LTD. ………. 2ND APPLICANT

VERSUS

SENATOR CARDS LIMITED........................ RESPONDENT

R U L I N G

Application for stay of ruling

Pending hearing of appeal on 23rd December, 2011

I.BACKGROUND

1. The original plaintiff /respondent,M/s Senator Cards Ltd, had sued the appellants for nonpayment of a charge card, issued to them by way of a contract between the parties. This agreement was entered into on the 22nd August, 1995.

By 31st August, 1998 the Applicant failed to pay the said sums that amounted to Ksh.900, 541/30.

2. The Applicants changed advocates.  An attempt to enter summary judgment to the defence was made. This was set aside by the High Court (Khamoni J.)

3. The hearing of the suit proceeded ex parte and a judgment, dated 14th March 2001, entered in favour of the respondent was made.

4. The applicant applied for its setting aside. By a ruling dated 1st December, 2011, the Principal Magistrate allowed the application to set aside the judgment, BUT made condition that the decretal sum of Ksh.2, 308,165/30 be deposited to court.

5. The applicant filed appeal on 23rd December, 2011 and by application of 23rd December, 2011 prayed that there be a stay of execution of those orders.

II.APPLICATION 23RD DECEMBER 2011

6. The arguments put forward was that the sum of Ksh.2, 308,165/32 was beyond the pecuniary jurisdiction of the said Hon. Magistrate.

7. The request to deposit this sum to court should not be made.

8. In reply the respondent stated that they were in order to have served the advocates formerly on record, due to non-compliance of the Order 9 and 6 Civil Procedure Rules.

9. That the trial magistrate was correct in giving orders that the decretal sum to be deposited to court.

III.OPINION

10. An application to set aside the judgment of the court awarding the respondent Ksh.2, 308,265. 30 was successfully applied for before the Hon. trial magistrate. The effect of setting aside a judgment means that there is no decree on record. It is, therefore, irregular to ask the applicant to deposit the whole decretal sum to court when in fact there is no decree.

11. I would agree with the applicant, that the ruling by the Hon. Magistrate requiring the deposit of the decretal sum to court, after judgment has set aside, be herein stayed pending the hearing of the main appeal.

12. There will be costs to the applicant.

Dated this 7th day of March 2012 at Nairobi.

M. ANG’AWA

JUDGE

Advocates:

i)R.B. Webale instructed by Wambua Njuguna & Kiriba

& Co Advocates for appellant

ii)B. Chege instructed by Muriu Mungai & Co Advocates for

respondent