Kenya Commercial Bank v Philip Odongo Kabita t/a Odongo Kabita Valuers [2010] KEHC 3027 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BUNGOMA

Civil Case 56 of 2000

KENYA COMMERCIAL BANK::::::::::::::::::::::::          PLAINTIFF

~VRS~

PHILLIP ODONGO KABITA

t/a ODONGO KABITA VALUERS::::::::::::::::::::::::          DEFENDANT

RULING

This is a ruling on the Defendant’s application dated 17/6/2002which was heard by Justice Mitey on9/7/2003and set for ruling on28/8/2003. The judge retired before he delivered the ruling. I have now taken over the file with a view of writing and delivering the ruling.

The application seeks for setting aside the court proceedings of 15/5/2002and the subsequent judgment and orders of11/6/2002 with all consequential orders. The Defendant seeks to be allowed to defend the suit and for orders for stay of execution of decree pending appeal. Mrs. Osodo for the Applicant submitted that the Applicant’s advocate was served with a hearing notice but received it under protest because he was engaged in another court on that day.

The court proceeded to hear the case and judgment was subsequently entered in favour of the Respondent. There is an appeal pending in Kisumu court on the matter and if stay is not granted, then it may be rendered nugatory.

The application was opposed by the Respondent. Mr. Makokha submitted that the Defendant’s counsel had been served with a hearing notice. It was not enough to receive the notice under protest. The application was brought after a seven months delay. The court satisfied itself as service before it proceeded.

I have looked at the prayers sought in this application. The Applicant seeks for setting aside proceedings and judgment and at the same time seeks for stay pending appeal. It is not clear whether the second prayer was meant to be an alternative prayer. The Applicant was represented in this application. The counsel who drafted the application is aware that the court cannot allow the two main prayers at the same time. I will look into the merits of both.

The Applicant does not deny service of the hearing notice. Although its advocate received it under protest, the counsel ought to have gone further and sent an advocate to hold her brief and apply to adjourn the matter if she was not available. Mr. Makokha submitted that the Defendants had earlier protested even when invited to take a hearing date. The application was brought a bit late in the day after seven (7) months had expired. I have perused the pleadings and the judgment of Justice Ringera in this case. I do not find merit in the prayers to set aside proceedings and judgment of the court.

As for stay pending appeal, the Applicant has annexed a notice and memorandum of appeal showing that it has filed an appeal in Kisumu Court of Appeal. The Applicant has a right to appeal in the event that he has been aggrieved by the judgment. Such an appeal if filed must be allowed to proceed without any threats of execution. On the other hand, the Plaintiff must be accorded security for his judgment pending the determination of the appeal. I find the prayer of stay pending appeal merited.

The application is partly successful. There shall be stay of execution pending hearing and determination of the appeal in terms of prayer (d) on condition that the Applicant deposits within sixty (60) days Ksh.900,000/= in an interest earning account in the names of the advocates for the parties. In default of depositing the said sum, the orders be vacated automatically. Costs in the cause.

F. N. MUCHEMI

JUDGE

Dated, Delivered and Signed 29 day of April 2010.

In the presence of  Mr. Makokha for plaintiff .