George Oduor Oloko v Gabriel Simali Wesonga [2014] KEHC 2519 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT  BUSIA.

ELC. CIVIL APPEAL NO. 25 OF 2014.

GEORGE  ODUOR OLOKO::::::::::::::::::::::::::::::::::::::APPLICANT

=VERSUS=

GABRIEL  SIMALI WESONGA:::::::::::::::::::::::::::RESPONDENT

R U L I N G.

The Appellant, GEORGE  ODUOR OLOKO  filed  the notice of motion under  certificate  of urgency dated  22nd  September, 2014  through  M/S.Wanyama & co. advocates. The application is brought under Section 1A, 1B and 3A of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules. The Appellant prays for stay of execution of the judgment and decree in Busia CMCC. No.138 of 2012 pending the hearing and final determination of the appeal. The application is based on the four grounds on the face of the application and the Appellant’s affidavit sworn on 22nd September, 2014.

The application is opposed by Gabriel Simali Omondi, the  Respondent,  through  the replying  affidavit  sworn by Francis Omondi advocate on 25th September, 2014.

Mr. Wanyama  and Mr. Jumba advocates for the Appellant  and Respondent  respectively made their  verbal  submissions during  the hearing  of the application  on 29th  September, 2014.

I have carefully considered the grounds on the application, submissions by both counsel, supporting and replying affidavits and their annextures and find as follows:

That the application seeks to stay the ‘’execution of the judgment and decree in Busia , CMCC. No. 138 of 2012 pending the final and determination of the appeal filed herein’’. The Appellant has however not annexed a copy of the judgment or  decree and the dates of the said judgment and decree have not been disclosed. The court  has perused the memorandum of appeal filed herein and dated 19th September, 2014 and noted from the heading that the appeal relates to the ruling delivered by Hon. J.M Maragia , Resident Magistrate on 16th September, 2014 in Busia CMCC. NO. 138 of 2012.  That  even though the memorandum of appeal  is  available in the file, the copy  of the ruling  dated 16th September, 2014 is not annexed and this court  is unable to establish at this stage what  the exact terms or contents of the ruling appealed against are.

That noting  that  the memorandum of appeal dated 19th September, 2014  relates only to the ruling of 16th September, 2014 in Busia CMCC. No. 138 of 2012, this court  is unable to establish  whether the Appellant  has filed an appeal against the judgment  and decree in Busia  CMCC. No. 138 of 2012 as  prayer (b) and (c)  of the application seems to suggest.

That going by the contents of the plaint filed  in Busia CMCC No. 138 of 2012, which is annexed to the affidavit  of George  Oduor Oloko  and marked ‘’G.O. 03’’, the main prayers  in that suit were eviction and injunction orders from Land parcel  Marachi/Kingandole/1275. The court  has perused the annextures to the replying affidavit of Francis Omondi, sworn on 25th September, 2014 and noted that  the notice of motion under certificate  of urgency  dated 6th August, 2014  in Busia CMCC. No. 138 of 2012  had a prayer ‘’C’’ in the following terms.

‘’ (c).  That  there be stay of execution  of the judgment and decree issued  in the suit herein pending the hearing and determination of  Busia High court  ELC. No. 33 of 2012  instituted by the defendant/applicant  herein against theplaintiff/respondent.’’

That application may possibly  be  the one that was the subject matter of the ruling dated 16th September, 2014 from which the appeal filed herein emanates.

That the Appellant  herein had also filed the chamber summons under certificate of urgency dated 4th February, 2014 in Busia H.C.  P & A No. 397 of 2013 which had a prayer ‘’C’’ in the following  terms:

‘’ (c).That there be stay of execution and further proceedings in Busia CMCC. No. 138 of 2012 pending the hearing and final disposal  of the objection proceedings  filed herein vide the summons dated 13th November, 2013 seeking revocation of the issued grant.’’

The Respondent’s  replying affidavit  has an annexture  marked ‘’FO 3’’ which is the ruling to the application dated 4th February, 2014.  The ruling  of 25th June, 2014  by Justice Tuiyott  dismissed the application stating that ‘’ the substance of the application is weak on merit.’’

That other than the difference in the cases cited in the applications for stay filed in Busia CMCC. No. 138 of 2012 and Busia H.C. P&A No. 397 of 2013, the two applications were similar in all aspects. The two applications are also similar to the Appellant’s application dated 19th September, 2014 which is subject matter of this ruling.

That the subject matter of Busia CMCC. No. 138 of 2012 , Busia  H.C. P&A No. 397  of 2013  and this appeal is land parcel  Marachi/Kingandole/1275 in one form or the other.  The Appellant had  filed the application for stay orders dated  4th February, 2014 in Busia H.C. P&A No. 397 of 2013.  That application was dismissed with costs  on 25th June, 201 and instead of the Appellant  preferring  an appeal or a review of those orders of the superior court, he filed a similar application dated  6th August, 2014 in Busia CMCC. No. 138 of 2012. The Appellant  lost that application through the ruling reportedly  of 16th September,  2014. No leave to file an appeal was applied for and, or obtained. That  being  as it may, and  considering  the Respondent’s  contention that there is nothing to stay as the execution  has been completed, and further  remembering that the court  should not issue  orders in vain, I find  no merit in the Appellant’s application dated 19th September, 2014.

That in view  of the fact that the Respondent’s  title  to Marachi/Kingandole/1275 emanates  from the orders issued in Probate  and Administration proceedings  which has not been successfully challenged in accordance with the law, the damages , if any, that  the Appellant  has suffered  or is  likely to suffer  in the future as a result of the execution of the orders in Busia  CMCC. No. 138 of 2012  are not irreparable.  The damages are  capable of being  quantified and  appropriate  orders applied for and issued,  should  orders in  favour of Appellant  be issued in relevant  judicial  proceedings.

From the foregoing reasons, the Appellant’s  application  dated 19th September, 2014  is without merit and is dismissed with costs.

S.M. KIBUNJA,

JUDGE.

DATED AND DELIV ERED ON 9TH DAY OF OCTOBER, 2014.

IN THE PRESENCE OF; MR. JUMBA FOR OMONDI FOR RESPONDENT AND MR. WANYAMA FOR APPLICANT.