Timothy Otuya Afumbwa & Fred Maruti Murunga v County Government of Trans Nzoia, Ratilal Gosar Dodhia, Vipul Kantil Shah & Avir Kanti Shah [2016] KEHC 757 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITALE

PETITION CASE NO. 4 OF  2015

TIMOTHY OTUYA AFUMBWA .......................................1ST PETITIONER

FRED MARUTI MURUNGA …...................................... 2ND PETITIONER

VERSUS

THE COUNTY GOVERNMENT OF TRANS NZOIA ..1ST RESPONDENT

RATILAL GOSAR DODHIA …...................................2ND RESPONDENT

VIPUL KANTIL SHAH …...........................................3RD RESPONDENT

AVIR KANTI SHAH …..............................................4TH RESPONDENT

R U L I N G

By its application dated 17/10/2016 the 1st respondent/appellant prays that there be stay of further proceedings in this petition and stay of execution of the judgement delivered on 23/6/2016 and any other subsequent orders pending the hearing and determination of the appeal at the  court of appeal.

The application is supported by the affidavit Pius Munialo dated 17/10/2016 together with the attached annextures.

Substantially all that the applicant is asking is for a second chance at the Court of Appeal.   If the stay is not granted then they stand to suffer loss and damages and the hospital complex together with the investments  already in place stand to be  wasted.

The respondent by the replying affidavit  of Timothy Otunga Afubwa has opposed the same arguing that the same is meant to delay the  first conclusion of this matter and it had been made  inordinately.  They argue that a mere notice of Appeal prima facie does not meant that there is such an appeal but a mere intention.

Having perused the application herein and taking into consideration  the totality of the issues herein I do find that the same are weighty.  The issues are of such great public interest and I find that it would be in order for the decision of this court to be subjected to further scruitunity. At the heart of this matter are public resources.   Both the applicants as well as the respondents will greatly benefit if a further adjudication is undertaken.

Against this backdrop I do not see what injury the respondents  stand to suffer.  They brought this matter on  their behalf and that of the constituence  of Trans Nzoia County.  They still have a chance at the Court of Appeal.  Moreover the applicant has a perpetual life and hopefully the Court of Appeal will determine the same speedily.

In the premises and to ensure  fairness on both sides I shall allow the application as follows;

(i) There be stay of the decree herein dated 23/6/2016 and all its consequential orders.

(ii) The applicant to process this appeal within 90 days from the date herein.

(iii) Should order (ii)  above not complied with then the stay granted in (i) above shall stand discharged automatically.

(iv) Each party to bear their respective costs.

Delivered this 5th day of December 2016.

____________________

H.K. CHEMITEI

JUDGE

In the presence of;

Prof. Sifuna for 1st  Respondent

Kisa for the 2nd – 4th Respondents

Shiveka for the Petition

Kirong – Court Assistant