Attorney General v Linda Tuju Ayayo [2018] KEHC 8204 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MISCELLANESOUS CIVIL APPLICATION NO. 569 OF 2016

HON. ATTORNEY GENERAL …………….....…………..  APPLICANT

VERSUS

LINDA TUJU AYAYO …………………………………. RESPONDENT

RULING

The respondent herein sued the applicant in the lower court following loss of her goods in trade which were produced as exhibits in a criminal trial held at Makadara Law Courts.  She also claimed loss of business following the loss of those goods.

The value of the lost goods amounted to Kshs. 443,000/=.  She was a business lady operating a shop which was closed after loss of her goods.   After the close of the plaintiff’s case in the lower court the record shows that the respondent informed the court no witnesses would be called for the defence.  The lower court entered judgment in favour of the respondent in the sum of Kshs. 443,000/= while holding that no basis had been laid for the prayer of loss of business.

There is now before me an application dated 21st October, 2016 by the applicant for a stay of execution of the lower court judgment, and also extension of time to file and serve the Memorandum of Appeal.  The grounds for the orders sought are set out on the face of the application alongside an affidavit sworn by an advocate from the State Law office.    There is also a draft Memorandum of Appeal that has been annexed to the application.

The application is opposed and there is a replying affidavit sworn by the respondent.  Both counsel on record agreed that the determination of the application be based on affidavit evidence.  I have gone through the record of the lower court, the application and the rival affidavits by both parties.  The application was filed after expiry of one and half years from the date of the lower court judgment.  It is contended that the applicant was not in court when the lower court judgment was delivered.  The date of the judgment was first set for 5th December, 2013.  However, it was not delivered until 5th March, 2014.

When the first date was set, there was representation by the applicant herein.  Any diligent party would follow up the matter even when judgment is not delivered on the appointed date.  No reason has been stated as to why the applicant did not follow up the matter.  The delay in lodging the present application is obviously inordinate and no excuse has been offered for that delay.

The applicant has mentioned that there are serious issues of law that require adjudication.  I have looked at the draft Memorandum of Appeal and related the same to the proceedings.  Clearly the issues being raised are an afterthought.  The respondent holds a valid judgment with a legitimate expectation that she ought to be compensated for the loss of her property in the hands of a government institution.

In my view, she should be allowed to enjoy the fruits of her judgment.  To allow this application would be prejudicial and cause injustice on the part of the respondent.  The application lacks merit and is therefore dismissed with costs to the respondent.

Dated, signed and delivered at Nairobi this 21st Day of February, 2018.

A. MBOGHOLI MSAGHA

JUDGE