Standard Group Limited & 2 others v Okisai & another [2022] KEHC 15784 (KLR)

Standard Group Limited & 2 others v Okisai & another (Civil Appeal 19 of 2020) [2022] KEHC 15784 (KLR) (16 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15784 (KLR)

Republic of Kenya

In the High Court at Bungoma

Civil Appeal 19 of 2020

REA Ougo, J

November 16, 2022

Between

Standard Group Limited

1st Applicant

Managing Editor, Daily Edition Standard Newspaper

2nd Applicant

Ms. Roselyne Obala

3rd Applicant

and

Cleophas Okisai

1st Respondent

Cleophas Okisai in his capacity as the executive director of Teso Peace & Human Rights Development Initiative

2nd Respondent

Ruling

1. The applicants/appellants filed a notice of motion dated September 29, 2022. The applicants have abandoned prayers for an order of stay of execution as sought in prayers (b) (f) of the said application. The applicants now seek to set aside order dismissing the appeal and to reinstate the same. The application was supported by the applicants. The application is opposed.

2. I have considered the said application, the affidavits filed by the parties the oral submissions by counsels.

3. The applicant argues that they have been unable to get the typed court proceedings to enable them file the appeal. This ground has been heavily attacked by the respondent. The respondent argues that the ground cannot stand as the applicants have failed as to shown the efforts they have made in getting the proceeding and that there is no affidavit to back what they allege.

4. The respondent also argue that the court should not exercise its discretion in setting aside the dismissal orders as the applicant case failed to comply with the stay conditions given to deposit of the decretal sum and that there is no affidavit from the bank that they had difficulty in depositing the sum as directed. Mrs Chunge also submitted that despite alleging that the lower court file could not be traced, the said file was found and application filed. That the applicant has come to court in bad faith and respondent should not be granted the orders sought.

Determination: 5. The orders sought by the applicants are discretionary orders. The applicant has maintained that the lower court file could not be traced and that the efforts to get the file has been unfruitful. The application is desirous of prosecuting the appeal. The respondent concern is noted. Being a court of justice I am inclined to give the applicants a chance to be heard. I will give the applicants the benefit of doubt and set aside court order of September 26, 2022 and reinstate the appeal in HCCA 19/2020 for hearing and determination. The appellant/applicant shall file their record of appeal within the next 45 days. The applicant shall pursue the issue of the missing file with the Chief Magistrate’s Court as this court can interfere with the administrative duties of the Chief Magistrate’s Court at this stage. There is a process to be followed by the applicant in the Chief Magistrate’s Court.

6. The respondents are awarded costs of Kshs 10,000. 00 to paid forth with. Mention on the February 6, 2023 to confirm compliance and directions on the hearing of the appeal.

Dated, Signed, and Delivered via Microsoft Teams at Bungoma this 16thday of November, 2022R.E OUGOJUDGEIn the presence of:Miss Ketango for the applicant holding brief Mr. NyamurongiRespondent – Absent.Wilkister C/A