Board of Trustee Anglican Church of Marsabit v Benson Boru Jarso [2020] KEHC 7186 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MARSABIT

CIVIL APPEAL NO.6 OF 2018

BOARD OF TRUSTEE ANGLICAN CHURCH OF MARSABIT......APPELLANT

VERSUS

BENSON BORU JARSO......................................................................RESPONDENT

(Being an appeal from the decision and judgement of the Resident Magistrate’s Court

at Marsabit T.M. Wafula R.M. delivered on 30. 10. 2017

in PMCC No.37 of 2016)

R U L I N G

The application dated 7. 11. 2019 seeks the following order:-

That the honourable Court be pleased to vacate, discharge and/or set aside, lift and/or cancel the warrants of attachment and sale issued to Quickline Auctioneers herein on 28. 10. 2019 and to declare the entire execution process herein irregular, invalid and unlawful, as the same is improper in law.

The application is supported by two affidavits of Manasses Kariuki Karoki advocate sworn on 7. 11. 2019 and 26. 11. 2019 respectively.  The respondents filed a replying affidavit  sworn by Mr.  Charles O. Orayo Advocate on 18. 11. 2019.  The application was initially filed before the Principal Magistrate’s Court and was referred to this Court on the ground that a similar application was made and a ruling delivered by this Court.

I have read the application and its two supporting affidavits, the submissions by counsel for the applicant, the replying affidavit as well as submissions by the respondent’s counsel.  The respondent was involved in a road traffic accident and was awarded general damages. The applicant appealed against the decision of the trial Court.  This court heard the appeal and delivered its judgement on 15. 10. 2018.  The applicant once again preferred to appeal against the judgement of the Court to the Court of Appeal.

The record further established that the applicant filed an application dated 19. 12. 2018 seeking extension of time to file an appeal (prayer 3) and an order for stay of execution (prayer 4).  Prayer 4 of the application reads as follows:-

That upon granting the order in prayer No.3 above, this honourable Court be pleased to issue an order for stay of execution of the Judgment and decree herein pending the filing, hearing and determination of the said intended appeal to the Court of Appeal of Kenya at Nyeri.

This Court delivered its Ruling on 2. 4.2019 and made the following orders:

1. Time for filing Notice of Appeal is hereby extended.  The appellant to file its notice of appeal within fourteen (14) days hereof.

2. An order of stay of execution of the judgment and decree herein is hereby granted as prayed in prayer 4 of the appellant’s application aforesaid.

3. The appellant to deposit a sum of Kenya shillings two (2) million in Court within forty five (45) days hereof.

The respondent obtained warrants of execution against the applicant and it is those warrants which led to the filing of the current application.  The respondent contend that no notice of appeal was filed within the 14 days extended period and that there is no appeal pending before the Court of Appeal.  The applicant is satisfied with the judgement of the High Court and even agreed on costs at Ksh.359,860 by consent.  On its part, the applicant maintain that a notice of appeal was filed within the 14 days period and that a sum of Kenya Shillings Two (2,000,000) million was deposited in Court as ordered by the Court.

Given that this Court granted orders staying execution pending the appeal before the Court of Appeal and since a notice of appeal was filed before the Court of Appeal, I do find that both the Principal Magistrate Court and this Court cannot deal with the issue as to whether a record of appeal was filed or not or whether the notice of appeal was served upon the respondent or not.  Those issues are the preserve of the Court of Appeal.  Having granted stay of execution pending the determination of the Appeal, I do find that the Principal Magistrate Court or the High Court cannot issue warrants of execution until it is shown that the appeal was determined or struck out.  I do not wish to belabor much on the application as stay of execution was granted and the Court cannot deal with that issue again.

I find that the application herein is merited and is granted in terms of prayer (3).

Costs shall follow the outcome of the appeal.

Dated, Signed and delivered at Marsabit this 11th day of March, 2020.

S. CHITEMBWE

JUDGE