Maina & 2 others v Nzivo [2022] KEHC 15251 (KLR)

Maina & 2 others v Nzivo (Miscellaneous Civil Application E380 of 2020) [2022] KEHC 15251 (KLR) (Civ) (11 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15251 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Miscellaneous Civil Application E380 of 2020

JK Sergon, J

November 11, 2022

Between

Peter Kimani Maina

1st Applicant

ROG Sacco

2nd Applicant

John Rugu Macharia

3rd Applicant

and

Jackline Mwikali Nzivo

Respondent

Ruling

1. The subject matter of this ruling is the motion dated 18. 7.2022 taken out by the applicants whereof they sought for inter alia an order for stay of execution pending the hearing and determination of the application dated 21st September, 2020.

2. They also sought for the reinstatement of the orders sought in the motion dated 21. 09. 2020. The applicants filed the affidavit sworn by Martha Mugo in support of the motion. Jackline Mwikali Nzivo filed a replying affidavit he swore to oppose the aforesaid motion.

3. When the application came up for interpartes hearing, learned counsels were invited to make oral submissions. I have considered the grounds stated on the face of the motion and the facts deponed in the rival affidavits. I have also taken into account the rival oral submissions made by learned counsels.

4. The substantive application in this matter is the motion dated 21st September, 2020 whereof the applicants are seeking for inter alia an order for leave to lodge an appeal out of time and for an order for stay of execution of the trial court’s decree pending the hearing and determination of the intended appeal.

5. The aforesaid application was placed before Justice Mbogholi (as he then was) on 25. 9.2020 under a certificate of urgency whereof the Honourable Judge granted an interim order for stay of execution of the decree to last for 30 days.

6. It would appear the order automatically lapsed after 30 days thus prompting the applicants file the instant application. The record shows that the motion dated 21. 9.2020 was to be fixed for interpartes hearing by the registry.

7. There is no evidence that the applicants’ advocate took any step to have the substantive application prosecuted. The applicants aver that they are still interested to prosecute the substantive application dated 21. 9.2020.

8. The respondent on the other hand is of the submission that the applicants do not deserve the orders sought because they have not even served the substantive motion dated 21. 9.2020. The respondent further pointed out that the applicants are guilty of laches.

9. Having considered the material placed before this court plus the oral submissions, it is abundantly clear that the applicants did not serve the substantive application dated 21. 9.2020. It is also apparent that the order issued by the court on 21. 9.2020 lapsed after 30 days.

10. It is further clear that the applicants have not taken any step to have the motion dated 21. 9.2020 listed for interpartes hearing. Instead of the applicants listing the application dated 21. 9.2020 for interpartes hearing they instead filed the instant application. I am convinced that the applicants conduct of filing a fresh application instead of listing the initial application as an abuse of the court process.

11. Having failed to serve the initial application upon the respondent for a period of more than a year the applicants do not deserve this court’s favour.

12. In the end, I find the motion dated 18/7/2021 to be without merit. The same is dismissed with costs to the respondent.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 11TH DAY OF NOVEMBER, 2022. ............................J. K. SERGONJUDGEIn the presence of:....................... for the Applicant....................... for the Respondent