Muthoni Kamau t/a Muthoni Kamau Advocates v Zamzam A . Abib t/a Abib & Associates Advocates [2022] KEHC 11749 (KLR)

Muthoni Kamau t/a Muthoni Kamau Advocates v Zamzam A . Abib t/a Abib & Associates Advocates (Miscellaneous Application E477 of 2021) [2022] KEHC 11749 (KLR) (Commercial and Tax) (19 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11749 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Miscellaneous Application E477 of 2021

DAS Majanja, J

May 19, 2022

Between

Muthoni Kamau t/a Muthoni Kamau Advocates

Applicant

and

Zamzam A . Abib t/a Abib & Associates Advocates

Respondent

Ruling

1. On February 4, 2022, I made the following orders following the Applicant’s successful application to enforce an undertaking:(a)The Respondent is directed to honour the undertaking contained in the letter dated 21st September 2018 within thirty (45) days of this order by paying to the Applicant KES. 4,000,000. 00. (b)The issue of costs is reserved upon compliance with (a) above.

2. The Respondent being dissatisfied with the orders has now evinced his intention to appeal against the ruling and order. In that regard, he has now filed the Notice of Motion dated February 21, 2022made, inter alia, under Order 42 rule 6 of the Civil Procedure Rules seeking an order of stay of execution pending the hearing and determination of the intended appeal. The application is supported by the Respondent’s affidavit sworn on February 21, 2022. It is opposed by the Applicant through her affidavit sworn on March 9, 2022.

3. When the application came up for hearing, the parties agreed in principle that a stay ought to be granted but the terms of the security was the issue in dispute. The parties could not agree on whether the decretal sum should be deposited in a bank following Islamic principles of banking which do not charge interest. As the parties were unable to agree, I am left with the unenviable task of the coming up with an appropriate order. In my view, an agreement is still in the parties’ hands.

4. I allow the Notice of Motion dated February 21, 2022on the following terms:a.An order of stay of execution of the ruling and decree be and is hereby granted pending hearing and determination of the intended appeal on terms hereunder.b.The Respondent shall provide security in the form of a Bank Guarantee for KES. 4,500,000. 00 from a reputable bank to be agreed upon within 30 days from the date hereof.c.In default of such agreement, the Respondent shall deposit the said KES. 4,500,000. 00 in court.d.In default of the conditions set out above, the order of stay shall lapse and the Applicant shall be at liberty to proceed with execution.e.This order should remain in force for a period of one (1) year unless extended varied and/or set aside by this court or the Court of Appeal.

DATED AND DELIVERED AT NAIROBI THIS 19TH DAY OF MAY 2022. D. S. MAJANJAJUDGECourt of Assistant: Mr M. OnyangoMr Mbaji instructed by Igeria and Ngugi Advocates for the ApplicantMr Ogunde instructed by Walker Kontos Advocates for the Respondent.