Farm & Transport Technical Services, Atin Aggarwal & Ashok Aggarwal v Quark Consultant Engineer & Dhillon Shamsher Singh [2010] KEHC 2469 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU

Civil Appeal 169 of 2009

FARM & TRANSPORT TECHNICAL SERVICES...…..1ST APPLICANT

ATIN AGGARWAL……………………...................……..2ND APPLICANT

ASHOK AGGARWAL…………………....................…….3RD APPLICANT

VERSUS

QUARK COUNSULTANT ENGINEER….....................1ST RESPONDENT

DHILLON SHAMSHER SINGH………...................….2ND RESPONDENT

RULING

This is an application for stay pending appeal. It is based on the grounds that the appeal has overwhelming chances of success and that if execution is allowed to go on the appeal will be rendered nugatory.Mrs Ndeda submitted that pending the hearing the determination of the appeal the appellant is ready to deposit the decretal sum in court.

Opposing the application Miss Muchungi for the respondents submitted that besides the application being defective for having been brought under the wrong provision, that is, Order 40 instead of Order 41 of the Civil Procedure Rules, there is no proper appeal before the court.The appellant should have appealed against the ruling dismissing his application to set aside judgment and not against the decree as this case has not been heard. I have considered these submissions as well as the affidavits in support and in opposition to the application.The uncontroverted averments in the replying affidavit are that judgment was entered against the defendant in default of appearance.On realizing that the defendants got their advocates to enter appearance but did not file a defence.When execution ensued, the defendant applied to set aside the ex-parte judgment but their application was dismissed for non attendance.The defendants then made another application and eventually succeeded to have the ex-parte judgment set aside and they filed a defence.When the suit was fixed for hearing on30th April 2009the defendants and their counsel once again failed to attend court and the matter was heard ex-parte and judgment entered.This appeal arises from the order of30th July 2009dismissing their application to set aside the second ex-parte judgment. The defendants are blaming their woes on their advocates.There is however nothing from those advocates to show in the first instance that they were indeed instructed to defend the defendants and why they failed to file a defence.After setting aside the first ex-parte judgment and filing defence, their is nothing from the defendants’ advocates to explain hwy they failed to attend court for the haring of the suit. Besides the chronicled indolence, I have noted that the applicants’ defence to the claim is general denial. Taking all the above factors into account I am satisfied that the applicants have no defence to the claim and their unexplained indolence is a scheme intended to delay their day of reckoning.In the circumstances I dismiss this application with costs.

DATED and DELIVERED this 27th day of April, 2010.

D. K. MARAGA

JUDGE.