County Government of Meru v DKK (Suing as next friend to HM (minor)) [2022] KEHC 13404 (KLR)

County Government of Meru v DKK (Suing as next friend to HM (minor)) (Civil Appeal E171 of 2022) [2022] KEHC 13404 (KLR) (6 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13404 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Appeal E171 of 2022

TW Cherere, J

October 6, 2022

Between

County Government of Meru

Appellant

and

DKK

Respondent

Suing as next friend to HM (minor)

Ruling

1By a notice of motion dated April 12, 2022 filed on April 14, 2022, applicant seeks orders that1. That the honourable court be pleased to reject this appeal summarily and strike it out.2. That in the alternative, if the honourable court is minded for the due performance of the decree by depositing in respondent and advocates for the appellant the outstanding decretal sum of KES 6,186,630/= together with costs KES 398,160/- pursuant to the order of mandamus issued by this honourable court on November 15, 2021 compelling the appellant’s County Executive Committee Member and Chief Officer in charge of the Department of Finance, Economic Planning and ICT to settle the outstanding decretal amount awarded to the respondent in Maua Chief Magistrates’ Court Civil Case No 15B of 2013. 3.That the honourable court be pleased to order the appellant to give security for costs of the appeal to be further incurred by the respondent if the appeal is admitted for hearing.4. That the costs of this application be provided for.

2The application is based on grounds among others that:a)There is no sufficient ground for interfering with the decree issued in favour of applicantsb)There has been inordinate delay of about 3 years in filing the appealc)The appeal has been filed as an afterthought to delay and frustrate applicant from enjoying the fruits of his judgment

3The application is supported by an affidavit sworn on September 12, 2022 by Kiruai Mukono, advocate for the respondent. He avers that there was delay in getting the proceedings of the trial court and further urges that respondent be given a chance to ventilate his appeal.

Analysis and determination 4. I have considered the notice of motion dated April 12, 2022 in the light of affidavits on record and annexutres thereto.

5. It is not disputed that applicant has judgement in his favour issued in Maua CMCC 15B of 2013. Additionally, applicant has an order of mandamus dated December 1, 2021 issue in his favour directing the County Executive Committee Member and also the Chief Officer, Department of Finance, Economic Planning and ICT, the County Government of Meru and Department of Finance Economic Planning and ICT, the County Government of Meru to settle the decretal sum in Maua Chief Magistrates Court Civil Case No 15B of 2013.

6. The court record reveals that none of the orders issued in applicants favour have been stayed or set aside and applicant is therefore still at liberty to execute. It therefore follows that the appeal neither delays nor denies the applicant the fruits of his judgement.

7. Driving a party from the seat of justice without giving them a chance to ventilate their case is a draconian measure which should be exercised cautiously. Respondent has explained to the satisfaction of the court that there was delay in supplying it with the proceedings and judgment that is the subject of this appeal and an order for summary dismissal of the appeal is therefore unmerited.

8. There is no evidence that respondent would not be in a position to pay the costs of the appeal in the event that the appeal is unsuccessful and therefore an order for security of costs is declined.

9. In the end, the notice of motion April 12, 2022 filed on April 14, 2022 is disallowed. Costs shall abide the outcome of the appeal.

DELIVERED IN MERU THIS 06 TH DAY OF OCTOBER 2022WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistant - Mr. KinotiFor Applicant - N/A for C.K.Ungu & Associates AdvocatesFor Respondent - Mr. Muthomi Njeru for Kiautha Arithi & Co. Advocates