1.It was agreed by the Advocates of the parties that I determine the Notice of Motion dated 20th January 2021 on the basis of the supporting affidavit, grounds of opposition and responses.
2.The Application is for the following orders:-
3.It is convenient to breakdown the motion into the three heads in which it is brought.
4.The first is the challenge on the legality of the Decree. The grounds are that the decree was extracted without the knowledge or involvement of the Defendant in violation of the provisions of Order 21, Rule 8 of the Civil Procedure Rules, 2010; that the decree does not conform with the terms of the interlocutory judgment to the extent that the Defendant is directed to pay interests which were not awarded by Court; that costs have been illegally and irregularly assessed without taxation as provided by law and that under section 94 of the Civil Procedure 2010 no execution proceedings can be commenced unless and until the costs have been taxed.
5.The history of the matter, however, shows why the challenge on the decree is not viable. By a Plaint dated 4th October 2019 and filed on 7th October 2019, the Bank filed suit against the Defendant for the following orders:-
6.It is common ground that the Defendant failed to enter appearance or file defence and on that failure interlocutory judgment was entered against it on 20/01/2020. The order by the Deputy Registrar who entered judgment was that judgment was entered as prayed. The request for judgment was not only for the principle but also for the interest as set out in the claim. For that reason, it is not the case, as claimed by the Defendant that there is no judgment on interest.
7.On 30th January 2020 the Plaintiff wrote to the Deputy Registrar seeking certification of costs. Those costs, at Kshs.343,800/= were certified and a certificate issued on 17th February 2020.
8.A day later, on 18th February 2020, the Defendant filed an application to set aside the interlocutory judgment which application was dismissed by this Court on 2nd November 2020. It is therefore trite that by the time costs were assessed and decree extracted, the Defendant had not entered appearance or come on record and the Defendant could not therefore be involved in the assessment of costs or extraction of the decree. In that event the decree cannot be faulted. Same that as costs were properly assessed by the Deputy Registrar, the complaint that section 94 of the Civil Procedure Act has been breached does not arise.
9.I turn to the application for stay pending hearing and determination of the appeal from the Court order of 2nd November 2020. It is true that a Notice of Appeal has been filed in respect to that ruling. Order 42 Rule 6 of the Civil Procedure Rules on stay reads:-
10.An important ingredient for that grant of that order is that a suitor for such orders must establish substantial loss. In the present matter the only substantial loss adverted to by the Defendant is in ground 17 of the application which reads:-
11.Unfortunately this ground is not supported with any evidence and the Court is unable to find that the Defendant has sufficiently proved that it will suffer substantial loss if stay is not granted.
12.I turn to the plea that the Defendant be allowed to pay the uncontested sums in monthly instalments of Kshs.1.5 Million until payment in full.
13.In response thereof counsel for the Bank states as follows in paragraph 15 of the replying affidavit;
14.I think that the counter offer is reasonable.
15.Save for the application for payment of instalments the rest of the prayers in the application are dismissed with costs. On payment by instalment the following are the orders of this Court:-
DATED AND SIGNED THIS 29TH DAY OF SEPTEMBER 2021F. TUIYOTTJUDGEDATED AND DELIVERED AT NAIROBI THIS 14TH DAY OF OCTOBER 2021A. MABEYA, FCI Arb JUDGEPRESENT: