Japheth Barua Kirori & Holly Redeemed Apostolic Ministries International v Jonathan Wabala & New Spring of Life Gospel Ministries Busia (K) [2013] KEHC 1089 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

H. C. C. NO. 41 OF 2011.

1.  JAPHETH BARUA KIRORI             )

2.  HOLLY REDEEMED APOSTOLIC   )……………….. APPLICANTS.

MINISTRIES INTERNATIONAL       )

VERSUS

1.  JONATHAN WABALA                ]

2.  NEW SPRING OF LIFE GOSPEL ]

MINISTRIES BUSIA (K)………… ]………………..RESPONDENTS.

R U L I N G.

The  Notice of Motion filed under certificate of urgency dated 24. 10. 2013 was filed by the 1st Plaintiff.  It is  for an order  of stay of execution pending the hearing and determination of an appeal  in respect  of this court’s judgment of 16. 10. 2013. The application  is indicated to be  based on section 3 and 3A ,  Order 21 Rule 1 and 2 of the Civil Procedure  Rules.  It’s  also  supported by the 1st Plaintiff’s  affidavit  sworn on 24. 10. 2013.

The Defendants opposed the application and filed grounds of opposition  through their counsel dated 28. 10. 2013, setting  out three grounds.

The court  has carefully considered the grounds  set out in the supporting  affidavit , grounds  of opposition and submissions by both 1st plaintiff and counsel for the Defendants  and find as follows;-

That Order 21  Rule 1 and 2  of the Civil Procedure Rules cited in the heading of the application by the 1st Plaintiff have no relevance to the current application as they relate to the  reading of Judgment.

That section 3  and 3A  of the (Civil Procedure Act)  which 1st Plaintiff possibly referred to in the heading of the application deals with  the special jurisdiction and inherent  powers of the court.

That  this article 159 (2)  (d)  of the Constitution obligates the court to ensure justice is administered without undue regard to procedural technicalities. The courts  have also over time held that an application should be decided   on its  merit and  substance,  even where the wrong provisions of the law, or no provisions of the law under which  the application is based, has been cited.

That  the courts’  judgment of 16. 10. 2013  dismissed  the Plaintiffs case with costs and therefore there is nothing this court can stay in respect of the order of dismissal of the case.

That  the element of the court’s  judgment  of 16. 10. 2013  that is  capable of being stayed,   is the execution for costs.  The record does not show that the taxation of costs has been commenced and finalized  or that the costs have been agreed upon.  The execution proceedings for costs  cannot be  commenced before the costs are agreed or taxed and decree on costs issued.

That the  1st applicant  has not shown that the Defendants are persons of straw who cannot refund  the money he will have  paid as costs  as a result of this court’s  judgment of 16. 10. 2013 being executed and  he thereafter succeeds on appeal.

That the payment of  the costs in execution of the court’s judgment  would not make the  1st Plaintiff’s  intended appeal prejudiced or nugatory  as the money paid can easily be recovered  if he is successful on appeal.

That  the application dated 24. 10. 2013  by the 1st Plaintiff was filed in contravention  of the clear provisions of Order 9 Rule 9 of the Civil Procedure Rules which states;-

‘’    9. When there is a change of advocate, or when a party   decides  to,  act in person having previously engaged an advocate, after judgment has been passed, such  change or intention to act in person shall not be effected without an  order of  the court-

Upon an application with notice to all the parties; or

Upon a consent filed between the outgoing advocate and the proposed  incoming advocate or party  intending to act in person as the case may be.’’

M/S Elungata and company advocate came on record for the plaintiffs on 27. 2.2013, when they filed their notice to change of advocate. The court’s judgment was entered on 16. 10. 2013 and  by  the time the application of 24. 10. 2013  was filed, the above provision had not been complied. The 1st Plaintiff attempted to cure this problem by filing a notice to act in person dated  28. 10. 2013. The  said notice is not signed by M/S.Elungata & company advocates to  signal their consent, and  was filed four days  after the application.

The upshot of the foregoing is  that the application dated  24. 10. 2013 has no merit and is dismissed with costs.

S. M. KIBUNJA,

JUDGE,

DATED AND DELIVERED ON  11th  DAY OF  NOVEMBER, 2013.

IN THE PRESENCE OF;

JUDGE