Morris Gari, Dan Onyango Odeyo & Kantech Steel Fabricator v Cyrus Mugwe Kuria [2019] KEHC 1258 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO 382 OF 2018

MORRIS GARI............................................1ST APPELANT/RESPONDENT

DAN ONYANGO ODEYO..........................2ND APPELLANT/RESPONDET

KANTECH STEEL FABRICATOR.......3RD APPELLANT/RESPODNENT

VERSUS

CYRUS  MUGWE KURIA.............................RESPONDENT/APPELLANT

RULING

This is an application seeking an order for the dismissal of the appeal lodged by 1st appellant herein.  It is based on Article 50 of the Constitution, Sections 1A,1B,3A and 78 of the Civil Procedure Act, Order 42 rules 13(1),14(1),(2) and (3),35(1) and Order 51 rule 1 of the Civil Procedure Rules, the reasons set out on the face of the application, together with a supporting affidavit sworn by the respondent.  The application is opposed and there is a replying affidavit sworn by the 1st respondent. Both parties have filed submissions contents of which I  have considered.

The1st appellant had earlier moved the court by way of an application dated 15th August, 2018 seeking a stay of execution of the lower court judgment.  Githua J delivered a ruling on 29th November, 2018 allowing the stay sought by the appellant, on condition that the decretal sum is deposited in a joint interest earning account in the names of the advocates on record within 30 days from that date.  It was further ordered that, in default of the said orders, the stay issued shall automatically lapse.

There has not been compliance with that order. The 1st appellant did not challenge that order by way of review or appeal.  I believe it is the default on the part of the 1st appellant that caused the   respondent to  file this application.  The default in  depositing the decretal sum as ordered by Githua J does not extinguish the 1st appellant’s right of appeal.  What it means is that, the 1st appellant is exposed to execution but his right of appeal remains.

Therefore the application to have the appeal dismissed as sought in the present application cannot be sustained.  The application is therefore dismissed with costs to the 1st appellant.

Dated, signed and delivered at Nairobi this 27th Day of November, 2019.

A. MBOGHOLI MSAGHA

JUDGE