Beverly Technoligies Limited v Fidelity Commercial Bank Limited [2017] KEHC 1348 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL  NO. 524  OF 2013

BEVERLY TECHNOLIGIES LIMITED.......APPELLANT/APPLICANT

-V E R S U S –

FIDELITY COMMERCIAL BANK LIMITED..................RESPONDENT

RULING

1) Fidelity Commercial Bank Limited, the respondent/applicant Herein, took out the motion dated 6th June 2017 in which it applied for the following orders:

1. THAT the court be pleased to set aside the orders of Lady Justice R. Ougo made herein on 6th March 2014.

2. THAT deposit paid into court being part of the decretal sum be released to the respondents advocates.

3. THAT costs be provided for.

2) The motion is supported by the affidavit of James Oyuke.  When served Beverly technologies Ltd, filed the replying affidavit of    John Muthuro Mucheni to       oppose the same.

3) When the motion came up for interpartes hearing, the appellant/respondent did not turn up hence the motion proceeded for hearing exparte.  However despite the absence of the appellant/respondent, this court is enjoined by law and practice to consider the replying affidavit filed on its behalf.

4) It is the submission of the respondent/applicant that the appellant/ respondent has not taken steps to have its application dated 4th March 2014 prosecuted thus denying the respondent/ applicant the fruits of its decree.  This court was urged to set aside the stay orders to enable the respondent/applicant proceed to execute the decree.

5) In the replying affidavit of John Muthuro Mucheni, it is deponed that the appellant/respondent has not ignored the respondent’s claim but it is still following up the issue of getting compensation from Amaco.  The respondent further argued that the respondent is the beneficiary of the compensation expected from Amaco.  This court was urged not dismiss the motion and instead maintain the appeal.

6) It is not in dispute that the motion dated 4/3/2014 has not been fixed for hearing interpartes.  The appellant/respondent has not given any reasons for its failure to have the motion fixed for  interpartes hearing.  With respect, I agree with the respondent/applicant that it is abundantly clear that the appellant/respondent has lost interest in pursuing the application.  I therefore find the motion meritorious.  It is allowed in terms of prayer 1.  I however find it inappropriate to grant prayer 2 of the motion, therefore I decline the request.  Costs of the motion is given to the respondent.

Dated, Signed and Delivered in open court this 17th   day of November, 2017.

J. K. SERGON

JUDGE

In the presence of:

..........................for the Appellant

...........................for the Respondent