Criminal Law-murder-the accused was charged with the offence of murdering her husband-ingredients of murder-whether the evidence adduced established the ingredients of murder to warrant the conviction of the accused-whether the accused was guilty of murder-Penal Code sections 203, 204

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CIVIL APPLICATION NO NAI 82 OF 1990

APPEAL-stay of execution pending appeal-application for- where one files for injunction or stay of execution pending appeal-where one doesn’t proceed to file the appeal-where seven years have lapsed since such an application was lodged and no appeal has been filed –whether the court should grant the application.

SUMMARY OF THE FACTS

By a charge dated 12th September, 1984 the second applicant charged his piece of land known as Land Reference Number 12144/6 together with buildings and improvements thereon in favour of the 1st respondent to secure Shs.700,000/=, to which extent the 1st respondent at the request of the 2nd applicant agreed to permit the 1st applicant to overdraw its account with the 1st respondent, subject to the terms and conditions of the charge.

the same year the 2nd applicant also charged another parcel of land belonging to him in favour of the 1st respondent to secure repayment of two other loan accounts. By a mutual agreement between the applicants and the 1st respondent all the loan accounts of the 1st applicant were amalgamated into a single account known as Account No. 9044489.

Exercising its powers of sale under the aforesaid charges the 1st respondent instructed the 2nd respondent to sell the said property by public auction on 9.3.1990. This prompted the applicants to sue the respondents seeking orders for injunction against sale of the charged properties, account between the applicants and the 1st respondent and authorising the applicants to redeem the said charged properties. Along with the plaint, the applicants applied by a chamber summons for an order that the respondents their servants and agents be restrained from disposing of alienating or in any manner dealing with the charged properties until determination of the suit. The 2^nd applicant contended that the 1st respondent had been overcharging interest on all accounts in contravention of the gazette notices earlier issued by the Central Bank of Kenya, had debited the applicants account with telegram expenses and penalty charges in contravention of the said gazette notices, had wrongly charged interest on accrued arrears of interest and had debited the applicants account with certain legal and finance charges which were either illegal or not agreed by the applicants.

On the other hand a branch manager of the 1st respondent, annexed to his affidavit, sworn on 20th February, 1990, a bundle of documents to show that the applicants had all along requested for indulgence without ever disputing the amount due and outstanding, that the applicants had on the other hand admitted their indebtedness and made several empty promises to liquidate the debt. The applicants, said the deponent, were employing delaying tactics and the suit was an abuse of the process of the court.

The court ruled that the applicants had not shown that they had a prima facie case against the respondents, that the application had not been brought with utmost good faith, but nevertheless went ahead to grant injunction on the condition that the applicants deposit into an interest earning account all the moneys demanded, to be held in the joint names of both firms of advocates appearing for the parties until the final disposal of the suit and ordered that the deposit should be made within 15 days of the date of his ruling failing which the application for injunction would be deemed to have been dismissed with costs but in the event the order is complied with, costs of the application would be the respondents in any event.

The applicants being dissatisfied with the said ruling filed notice of appeal dated 29th October, 1990 and by a notice of motion dated 1st November, 1990 filed under rule 5(2)(b) of the Court of Appeal Rules, on 5th November, 1990, applied for an order that the respondents, their officers, servants and agents be restrained from selling or in any manner dealing with the charged properties until the determination of the intended appeal. Further or in the alternative, the applicants sought an order for stay of that part of the order of the superior court which required the applicant to deposit all the moneys demanded by the 1st respondent within 15 days as a condition of the granting of the injunction.

After seven years, the applicants had not lodged an appeal and there was no explanation offered to account for this failure.

HELD

1. As the applicants have failed to file the intended appeal which if they were seriously interested in it, should have been filed more than 7 years ago and there is no acceptable reason for their failure to do so, this application is nothing but an abuse of the process of the court.

Application dismissed

[Ruling] Civil Practice and Procedure - non-attendance - plaintiff failing to attend a court hearing - plaintiff's advocate seeking an adjournment - application opposed - no good reason given for the failure to attend - advocate stating that he was not able to proceed with the suit in his client's absence - suit dismised - Civil Procedure Rules Order 9B rule 4