Benson Muchira & Samson Menji Gitari v M W N & I W (Minor suing through his Mother and next friend M W. N) [2017] KEHC 1628 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYAAT NAIROBI

CIVIL APPEAL  NO. 256 OF 2015

BENSON MUCHIRA...............................................1ST APPELLANT

SAMSON MENJI GITARI......................................2ND APPELLANT

VERSUS

M W N..................................................................1ST RESPONDENT

I W (MINOR SUING THROUGH HIS

MOTHER AND NEXT FRIEND M W. N)............2ND RESPONDENT

(Being an Appeal from the judgment and decree of the Hon. Obulutsa Senior Principal Magistrate on the 30th April 2015 in Milimani CMCC No. 7385 of 2012 and consolidated with CMCC No. 7384 of 2012)

RULING

The Respondent filed the instant Application under the provisions of Order 42 and 51 of the Civil Procedure Rules seeking an order that this Honourable Court be pleased to discharge its orders of stay and allow the Respondent to proceed with execution. The Respondents have also sought for the costs of the application.

The Application was supported by the affidavit of SETH OJIENDA, an Advocate in conduct of the matter on behalf of the Respondents where it was averred that a judgment was delivered in the lower court awarding the Respondents the sum of Kshs. 240,555 with costs and interests and the Appellants obtained stay orders which were extended pending the hearing and determination of the Appeal. The Respondents aver that since judgment was issued in the year 2015, the Appellants have lost interest in the Appeal and the said Appeal had been filed without a decree. The Respondents further deponed that the application has been brought without undue delay and if it’s not granted they would be greatly prejudiced.

The application was promptly served on the Appellants Advocates who did not file a Reply to the same.

When the matter came up for hearing, the Respondents argued that since the Appeal was filed on 28th May, 2015, the Appellants have not taken any action. The Respondents’ counsel submitted that the Appellants are riding on the order of stay that is prejudicial to the Respondents.

I have considered the application and the arguments by the Respondents. I have also perused the Court file and there is an affidavit of service. The Appellant did not attend court when the application came up for hearing.  This Appeal was filed in the year 2015 and the Record of Appeal was filed on 24th March, 2017. The stay orders were also issued in the year 2015.

My further perusal of the file also reveals that the Appellants herein filed a Supplementary Record of appeal on 14th September, 2017 annexing the decree issued in the lower court. This was after the application was served upon them. I do not understand why they failed to respond to the Application herein. It is now two and a half years since the Appellants obtained the stay orders and it is in the intersect of justice that the Appeal be heard promptly in fairness to the Respondents who have a decree which they would like to execute. The Record of Appeal was filed on 24th March, 2017 and since then, the Appellants have not set down the Appeal for directions for a period of seven (7) months.

Though the Appellants deposited the decretal amount in a joint account in the year 2016, I find that they are not keen on prosecuting the Appeal. It is only after the Applicant herein raised the issue of the decree having not been attached to the Record of Appeal that the Appellants moved to Court to file the supplementary record but failed to file a Reply to this application.

In view of the aforegoing, I find that the application has merits and I allow the same with costs.

It is so ordered.

Dated, Signed and Delivered at Nairobi this 6thDay of December, 2017.

…………........

L. NJUGUNA

JUDGE

In the Presence of

…………………………. For the 1st Appellant

…………………………. For the 2nd Appellant

…………………………. For the 1st Respondent

…………………………. For the 2nd Respondent