Hassan & another v Welal & 2 others [2022] KEHC 3218 (KLR)

Hassan & another v Welal & 2 others (Civil Appeal E238 of 2022) [2022] KEHC 3218 (KLR) (Civ) (15 July 2022) (Ruling)

Neutral citation: [2022] KEHC 3218 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E238 of 2022

JK Sergon, J

July 15, 2022

Between

Adan Yare Hassan

1st Appellant

Fatuma Abdulkadir Ali

2nd Appellant

and

Habiba Ali Welal

1st Respondent

Batula Ali Walal

2nd Respondent

Muna Ali Welal

3rd Respondent

Ruling

1. The subject matter of this ruling is the motion dated 14th April 2022 taken out by the appellants whereof they sought for order for stay of execution pending appeal of the order issued exparte on 8th April 2022 by Hon. M. W. Murage, learned SRM vide Nairobi CMCC No. COM. MSU. No. E0056 of 2022.

2. The motion is supported by the affidavit sworn by Adan Yare Hasan. The motion was served upon the respondent’s advocate as shown by the affidavit of service sworn by Moses Kimarong Sakana but the same attract any response therefore the application proceeded exparte.

3. I have considered the grounds stated on the face of the motion plus the facts deponed in the supporting affidavit. I have also taken into account the oral submissions of Mr. Lakicha, learned advocate for the appellant.

4. It is the submission of the applicant that the trial magistrate ordered the appellant to deposit in court a sum of kshs.4,681,825/25 as a condition to enable them defend the suit.

5. It is argued by the appellants that they would suffer substantial loss if the order for stay is not granted in that they would lose their constitutional right of a fair trial and hearing.

6. There is no averment controverting the assertion that the trial Senior Resident Magistrate issued the order complained of exparte without according the appellants a right of hearing before complying with the court order.

7. I am convinced that the appellants’ motion has merit, it is allowed. Consequently, an order for stay of execution of the exparte order issued on 8th April 2022 by Hon. M.W. Murage, learned Senior Resident Magistrate is granted pending appeal. Costs of the motion to abide the outcome of the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 15TH DAY OF JULY, 2022. J. K. SERGONJUDGEIn the presence of:..............for the 1st Appellant..............for the 2nd Appellant.............for the 1st Respondent.............for the 2nd Respondent.............for the 3rd Respondent