JACINTA WANGARI v KENYA BUS SERVICES LTD [1999] KEHC 173 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

Civil Case 6577 of 1991

JACINTA WANGARI........................................................ PLAINTIFF

-versus-

KENYA BUS SERVICES LTD..................................... DEFENDANT

RULING

This is the second application brought by theApplicant/Defendant under order XLI rule 4 of the Civil ProcedureRules for stay of execution of the decree and Judgment of thiscourt delivered on the 4th of June, 1996 (Juma, J.) pending theappeal to the Court of Appeal. A similar application filed on the22nd of July, 1996, was dismissed by this court on the 21st of July,1998 for want of prosecution.

I have considered all the matters that were urged before me incounsel submissions and in the affidavits filed. It would appearto me that the Applicant is quite lax in prosecuting their intendedappeal. Despite the fact that Judgment was delivered way back onthe 4th of June, 1996, no appeal has been lodged in the court ofappeal apart from the Notice of appeal.  I would add that theApplicant's counsel has been rather arrogant to his learnedcolleague by refusing to answer his correspondence in respect ofhis desire to sort out the issue of settlement of the decretal sum.All these applications for stay of execution, to my mind, has beenprompted by the Notice to show case now pending before the DeputyRegistrar why execution should not issue. However, the Applicant'scounsel, has to his credit already paid part of the decretal sumamounting to shs. 1. 5 million and the balance now outstanding isthe subject of the intended execution.

I agree with the fears expressed by the Applicant's counselthat in the event of a successful appeal on quantum, they might notbe able to recover any money from the Respondent/Plaintiff once thesame has been paid out. It is necessary therefore that in order towake up the Applicant/Defendant and at the same time preservethebalance of the amount due, I will allow this application uponcondition that the whole balance, of the decretal sum of shs.1,078,910/- together with accrued interest to date be deposited ina joint interest earning account in the names of counsel for theparties within 30 days from the date hereof and in default thereof,the Deputy Registrar may be at liberty to allow the Respondent/Plaintiff to proceed with execution of the decree whenher notice to show cause comes up for hearing.  it is so ordered.

Dated and delivered at Nairobi this 10th day of February,1999.

S. OGUK

JUDGE