M’Mucheke M’Mubwika, Meshack Murungi, Stephen Meeme & Julius Kaari Mucheke v Janet Kaunanku Kithis & Simon Maore [2015] KEELC 833 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

LAND  AND ENVIRONMENT COURT

CIVIL APPEAL NO 36 OF 2015

M’MUCHEKE M’MUBWIKA ...........................................1ST APPELLANT

MESHACK MURUNGI .....................................................2ND APPELLANT

STEPHEN MEEME.............................................................3RD APPELLANT

JULIUS KAARI MUCHEKE............................................4TH APPELLANT

VERSUS

JANET KAUNANKU KITHIS..........................................1ST RESPONDENT

SIMON MAORE.................................................................2ND RESPONDENT

RULING

The application states that it is brought to Court Under Section 3 and 3 A of Cap. 21 and Order  22 Rule 50,51 and 53 CPR and Article 159 of the Constitution of Kenya.  The application is dated 9/9/2015 and seeks orders :-

THATthis application be certified as urgent and the Honourable Court be pleased to hear it ex-parte in the first instance.

THATthe Honourable Court be pleased to order a stay of execution of judgement and decree in Maua C.M.C.C NO. 43 OF 2011 pending the hearing and determination of this application.

THATthe Honourable Court be pleased to order that of the 1st defendants Kshs. 937,300/= deposited in MAUA C.M.C.C No.43 of 2011 Kshs. 574,000/= be retained in Court as security for due performance incase the appellants appeal fails and the balance of Kshs. 363,300/=  be released to the appellants pending hearing and determination of this appeal.

THATthe Honourable Court be pleased to confirm prayer (2) supra upon inter parties hearing of this application.

THATCosts of this application be provided for:

This application is supported by the affidavit of M’MUCHEKE M’MUBWIKA and JULIUS KARI MUCHEKE and has the following grounds:-

The appellants have filed this appeal which has high chances of success.

The appellants have proposed to offer security that is adequate to cover the respondents decree in the sub-ordinate suit.

If the orders sought are not allowed the  respondent shall unjustly enrich themselves and may not be able to refund the appellants.

Vide an application by way of Notice of Motion dated 9/9/2015, the applicant obtained conditional stay pending hearing of the application dated 12/8/2015. The Court issued the following Orders:-

The applicant should deposit a sum of Kshs. 300,000/= with Court as security within 14 days of today failing which the conditional stay issued herein will lapse automatically.

Applicants to file and exchange written submissions regarding both applications , one dated 12. 08. 2015 and  the other dated 9. 9.2015, within 7 days and the respondents to file and exchange their  Written Submissions  with respect to the 2 applications within 7 days after service of the applicants’ Written Submissions upon them.

Confirmation of filing of written  submissions  on 7. 10. 2015.

The matter came up for confirmation of filing and exchange of Written Submission on 7/10/2015. Mr. Harun Gitonga pointed out that the applicants had not observed the orders issued by this Court on 16/9/2015 regarding filing and exchange of Submissions. He said that as he had not received the applicants’ Submissions he was unable to file his Submissions which would have been a response to those ones of the applicant.

Mr. Gitonga also informed the Court that the applicants had not deposited a sum of Kshs. 300,000/= in Court as security as ordered by the Court.

The Applicants are not in Court.  Their  Advocate is also not in Court though he was aware that this matter was to be in Court today, 7/10/2015.

I find that the applicants have not observed the terms of  the conditional stay granted to them which  lapsed automatically 14 days after 16/9/2015 within which time they should have deposited  in Court the amount of money the Court had stipulated. I also  find that the applicants have failed to prosecute their application.

In the Circumstances,  the application is dismissed. Costs are awarded to the respondents.

Delivered in open Court at Meru this 8th day of October, 2015 in the presence of: -

Lilian /Daniel

Harun Gitonga for  Respondents

Kirimi Mbogo Absent for Applicants

P. M. NJOROGE

JUDGE