Charles Wesonga Mbingi v Bernard Odhiambo Omusi [2020] KEHC 2486 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISUMU

(CORAM: CHERERE-J)

CIVIL CASE NO. 77 OF 2019

BETWEEN

CHARLES WESONGA MBINGI..................................................................APPELLANT

AND

BERNARD ODHIAMBO OMUSI......................................................1ST RESPONDENT

(Being an Appeal from the Ruling and Order in Kisumu CMCC No. 86 of 2016

by Hon. J.Ngarngar (CM) on 19thJune, 2019)

JUDGMENT

1. On 27. 10. 18, the court fixed Kisumu CMCC No. 86 of 2016 for granted a stay of execution on condition that the principal judgment sum of Kshs. 1,200,000/- be deposited in an interest earning account in the names of both advocates.

2. Contrary to the court order, the Appellant on 18. 03. 19 deposited a bank guarantee issued by National Bank for Kshs. 1,300,000/-.

3. Thereafter, the Appellant by an application dated and filed on26. 03. 19 sought the leave of court to file the said bank guarantee.

4. As at the time of seeking leave, the Appellant had long filed the bankguarantee without leave of court and in total breach of the court’s order dated 27. 10. 18.

5. Consequently, I find that the trial court in its ruling dated 19. 06. 2019 rightly rejected the substitution of its order with a bank guarantee that was filed without an express order or leave to file.

6.  Consequently, the appeal  is disallowed with costs to the 1st Respondent.

DATED AT KISUMU THIS   14thDAY OF October ,2020

T. W. CHERERE

JUDGE

Court assistant  - Ms. Amondi

For Appellant- Mr. Mirembe for Ashioya & Co. Advocates

For 1st Respondent - Mr. Ochieng for P.Ochieng Ochieng & Co. Advocates For 2nd Respondent - State Law Office