DR. BRIGID BOYANI MONDA vs ANTONY STEVEN MONDA [2004] KEHC 2284 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYAAT NAIROBI

CIVIL APPEAL NO 181 OF 2004DR. BRIGID BOYANI MONDA ………….…...…………. APPELLANT

VERSUS

ANTONY STEVEN MONDA ………………...………… RESPONDENT RULING

An ex-parte Judgment was entered against the Appellant in the lower court in Milimani Commercial CC 5657 of 2000 following the Appellant’s Counsel’s failure to appear at the hearing. He subsequently applied for the Judgment to be set aside. In setting aside the Judgment, the Hon. Magistrate (Mrs. G. L. Nzioka) required that the Appellant pay the Respondent’s thrown away costs of Kshs.5,000/= and deposit the entire decretal sum in Court. Aggrieved by that decision, he has appealed to this Court. For now, he wants the execution of that Judgment stayed. He has submitted that those terms of setting aside are oppressive because the Appellant has not been heard on merit, and should not have had to deposit the entire decretal sum in Court. He has offered to deposit his motor vehicle log book in Court as security.

The Respondent’s argument is based mainly on the Appellant Counsel’s conduct that led to the entry of exparte Judgment. That has nothing to do with the application for stay before this Court.

The Court, in granting stay, is guided by Order 41 Rule 4. The applicant must demonstrate that substantial loss will ensue if the order is not granted; that he has filed this application without delay; and that he is willing to provide security.

Clearly, the Applicant will suffer substantial loss if he has to part with the entire decretal amount on a Judgment that was entered ex parte for nonappearance; his application is timely; and the offer of his log book as security is fair.

Accordingly, I grant stay of execution as prayed provided the Applicant deposits with this Court the log book to his motor vehicle registration no. KAG 001 J, Toyota Corona, within the next fourteen (14) days.

Those shall be the orders of this Court.

Dated and delivered at Nairobi this 22nd day of April, 2004. ALNASHIR VISRAM JUDGE