Peter Mutai t/a Lessos Agricultural Store v Wetern Seed Company Limited [2017] KEHC 8521 (KLR)

REPUBLIC OF KENYA

IN THE HIGH CURT OF KENYA AT KITALE

CIVIL APPEAL NO. 7 OF 2016

PETER MUTAI

T/A LESSOS AGRICULTURAL STORE....APPELLANT/APPLICANT

VERSUS

WETERN SEED COMPANY LIMITED .........................RESPODNENT

RULING

By his application dated  3//2017 the applicant prays that there be  stay of execution of the decree issued in Kitale CMCC No 365 of 2015 – Western Seed Co Ltd Vs Peter Mutai T/A/ Lessos Agricultural Storesand equally stay pending the determination of this appeal. The same is supported by the annexed affidavit of Peter Mutai.  The said affidavit has attached a copy of the  Memorandum of Appeal and according to the applicant he stands to suffer loss and damage and the said appeal rendered nugatory.

The respondent  on its part has filed grounds of opposition stating that this application is sub judice as there is a pending application dated 6/4/1016 which is  similar to this one and the same is yet to be prosecuted.

I have perused the entire proceedings herein and indeed it is true that this application is similar  word for word with the application dated 6/4/2016 which  is yet to be determined.

Infact on 20/4/16 the parties agreed to dispose the same by way of written submissions. Todate for  reasons best known to the parties the same remains  unprosecuted.

Consequently I agree with the  respondent that  this is an abuse of the court process.  If the applicant was interested, he should have prosecuted the earlier application. This application dated 3/1/2017 is therefore dismissed with costs to the respondent.

Dated this 14th day of February  2017.

____________

H.K. CHEMITEI

JUDGE

In the presence of;

Waweru holding brief for Teti for Respondent

No appearance for the Applicant

Court Assistant - Kirong