Grace Muthoni Kabui v Joseph Karume Njenga [2006] KEHC 2105 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (NAIROBI LAW COURTS)

Civil Appeal 457 of 2003

GRACE MUTHON KABUI ……………................................................…………….   PLAINTIFF

VERSUS

JOSEPH KARUME NJENGA …………….….................................................... DEFENDANT

RULING

1.    PROCEDURES AND BACKGROUND

1.    The application before me is brought under Order 41 r 4 (1) Civil Procedure Rules and Seciton 3A and 63 (e) Civil Procedure Act.  It seeks prayers of  stay of execution of the subordinate courts orders against the applicant who has filed an appeal to this High Court.

2.    Grace Muthoni Kabui (Original plaintiff respondent/respondent) sued Joseph Karume Njenga (the original dafendant/appeallant/applicant) of alleged fraud.  She removed timber/and or presumably trees from a forest worth Ksh.150,000/-.  The applicant took the said bulk timber/trees and sold the same but did not pay Ksh.150,000/-.  He failed to enter appearance and file defence even when he was aware that summons were left with his relative.  When he rushed to court he found the respondent had obtained judgment against him exparte.

3.    An application to set aside the exparte judgment was refushed.  The application before me indicates that  the applicants former advocate failed to diligently persecute the same, a delay was therefore occasioned.

4.    The respondent (Grace Muthoni Kabui) then executed the courts judgment.  The applicant (Joseph Karume)was unable to pay.  He was committed to civil jail on the 30. 6.05.

5.    On the very same day an application for stay of the trial magistrate orders was made.  Namely, that the orders that committed the applicant to civil jail be stayed.  Ojwang J stayed the magistrates orders on 30. 6.05.

6.    The parties appeared before me on 27. 4.06 for an interparties hearing.  The applicant “surprisingly” alleged that he infact was NOT Joseph Karume Njenga.  He was one Antony Karume Njenga.  This, the respondent objected to as in the magistrates courts he actually swore an affidavit that he was one Joseph Karume Njenga on the 11. 9.03.

7.    The applicant nonetheless admitted that he had a good defence.  This defene consisting of 5 paragraph/lines were denials to the plaint.

II:    FINDINGS

8.    The question to ask should the appeallant continue to serve 30 days imprisonment pending the appeal of his case?  If the appellant was at all times Joseph Karume Njenga the answer would have been no and thus the application for stay of the court orders pending appeal would have been granted on grounds that a party has a right to be heard.

9.    In this instance a new matter has arisen.  That the trial magistrate had committed a stranger.   These are serious allegations and raises questions to be considered in the appeal.  The trial magistrate is alleged to have been aware of these questions.

10.   I hereby find that the applicant has a right to be heard.  That  pending this appeal I order there be a stay of execution of the trial courts orders committing  the applicant  to 30 days civil jail.

11.       I further order that the costs of this application be in the cause.

Dated  this 28th day of May 2006 at Nairobi.

M.A. ANG’AWA

JUDGE

Mwangi Wahome & Co. Advocates for the plaintiff/respondent

Njomo Njenga & Co. Advocates for  the defendant/applicant