REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

CIVIL CASE NO. 31 OF 2016

  1. SIGHN SURGIT                                                                                      

 2. MALKIAT SINGH                                                                                   

3. GIBLERT WANYONYI………..………………………… APPELLANTS   

VERSUS

AUGUSTINE WESONGA OPONDO and ZAKAYO OPONDO CHESA        

suing as the personal and legal representatives of the estate of the late  

 ELLIET HENRY ZAKAYO ………………..……......……....…RESPONDENTS

RULING

1. Before court are two applications by  the appellants/applicants, SINGH SURGIT, MALKIAT SINGH and GIBLERT WANYONYI as against AUGUSTINE WESONGA OPONDO suing as a legal representatives of the estate of  Elliet Henry Zakayo.

2. All applications were filed under certificate of urgency.  The first is dated 14^th November, 2016, seeking to set aside the order of the trial court in CMCC No. 859 of 2010 where the condition for setting aside  the exparte  judgment was payment of  decretal amount of Kshs. 1,846,443/- in a joint interest earning account.  The appellants were aggrieved by the said condition.

3. The applicants argue that depositing the  entire amount will cripple their  business.

4. The second application dated 13^th December, 2016 also under certificate of urgency  seeks to have a vehicle attached by the respondents auctioneers Eshikhoni Auctioneers being  vehicle reg. No. KAZ 909G Mitsubishi Canter be released pending hearing and determination of the appeal. The application was  brought on grounds that the vehicle was attached while interim orders were in place.

5. Both applications were objected to by the respondent.

The first application was opposed on  the grounds that the appellants’ failed to comply with the trial court’s order for setting aside the exparte order specifically failure to  pay the decretal sum into a joint account; further that  this court has no  jurisdiction to re-consider a trial court’s discretion.

6. As for the 2^nd application the respondent argues that  the interim stay  lapsed  on the 7^th of December, 2016 and the  auctioneers attached thereafter. That the extension of the order was served on  the respondents counsel  on 10^th of December, 2016 3 days after the  extension and 2 days upon execution  and therefore the  respondent  cannot be faulted.

7. I have considered both applications and submissions by the parties and authorities cited.

I will start by the 2^nd application.  It is clear that there was a lapse on the part of the appellants’ counsel to serve the order extending the stay.  The said order was  served two days after extension of the same and therefore the respondents counsel cannot be faulted for acting  diligently however the outcome of the   first application shall inform the 2^nd application’s direction.

8. The first application was brought pursuant to Section 1A, 1B, 3, 3A, 63(e) of the Civil Procedure Act and Order 42 Rule 6, and 51 Rule (1)  of the Civil Procedure Rules.  The substantive rule being  relied upon is Order 42 rule 6. The requirements of the said order are very clear in that in order for a   court to grant an order of stay it must be satisfied that substantial loss may result; the application has been brought without undue delay; and the applicant must provide such security as may ultimately be binding on him.

9. The applicants as stated above are appealing against the condition imposed on them by the trial court.  They argue that the condition is oppressive and they have preferred an appeal. In the meantime, the vehicle has been attached and is likely to be auctioned yet the same is their tool of trade.

10. . In his response the respondent has dealt more on the case in the trial court and the order subject of the appeal. He does not dispute that if execution takes place the appellants will suffer substantial loss.  I am satisfied that the 1^st application was made before court without undue delay, a stay is eminent in order that the appeal is not rendered nugatory.

11. .In the circumstances, therefore I will give the following orders;

(a).  That there  be stay of execution of the trial court’s  order pending hearing and determination of the appeal on condition that a sum of Kshs. 800,000/- be deposited in an interest earning account in the names of the  advocates representing the parties within the next 15 days.

(b).  This appeal be set down for hearing, the record having been filed within 30 days.

(c). The vehicle attached on the 8^th of December, 2016 by Eshikhoni Auctioneers being vehicle registration No. KAZ 909G Mitsubishi Canter be released upon payment of reasonable auctioneer’s fees to be agreed or taxed.

(d).  Costs in the cause.

DATED and DELIVERED at BUNGOMA this 20^TH OF DECEMBER 2016

ALI-ARONI

JUDGE