Notice of motion dated 24th September, 2021The Applicant filed the above stated application, the stay of execution was granted by the Court on 27th September 2021.The remaining issues is;
1.The draft Memorandum of appeal annexed hereto be deemed as duly filed and served.
Respondents submissions in opposition to the application dated 24/09/2021Prayer for stay:
2.That the Applicant prays for a stay of execution of the judgment delivered on 16/09/2020 in Machakos CMCC No. 763 of 2015 and all consequential orders thereto pending the hearing and determination of an intended appeal owing to the attachment levied on 22/05/2021.
3.On 27th September, 2021 Kemei J granted the Applicant an order of stay of execution of the judgment and decree in Machakos CMCC No. 763 of 2015 pending directions on 5/10/2021.
4.The Applicant submits that there is nothing to be stayed as the proclaimed goods were auctioned after another similar application for stay of execution dated 7/06/2021 was dismissed by Hon. Ondieki on 2/09/2021.
Prayer for leave to file an Appeal:
5.The said prayers seeking for leave to file an appeal out of time and that a draft memorandum of appeal annexed thereto be deemed as duly filed and served.
6.The only reason given is a pretentious reason that the applicant only learnt of the judgment of the lower Court in June 2021 since 16/09/2020.
7.That the Respondent herein has taken the liberty to give a history of the Lower Court case and most importantly is the fact that the Applicant herein was all through represented by Counsel and he cannot now turn around after one year since judgment was delivered to claim that he did not know of the judgment but he knew there was a case.
8.The Respondents further submit that a party to a suit has a right to choose an advocate and whatever the said advocate does for and on his behalf binds him.
9.The judgement of 16/09/2020 was delivered in the presence of the Applicants advocates and no appeal was filed in 30 days as required by the law.
10.Secondly, a demand for payment was made and no payment was received hence the matter rightly produced to execution.
11.The Applicant herein went into hiding after judgment and only woke up after auctioneers visited him.
12.In order to frustrate execution, he filed an application for stay of execution dated 7/06/2021 through a different Advocate J. A. Makau & Co. Advocates and the application was fully heard and was dismissed on 2/09/2021 and there is No appeal against the said dismissal.
13.The applicant herein has filed this application to act as an Appeal against the dismissal orders of the application dated 7/06/2021 and which is very wrong and an abuse of the court process for a party to file several applications on the same issue.
14.The Respondent submits that there is no good reason forwarded to this court to warrant prayer seeking leave to file an appeal and the application should be dismissed.
Prayer to set aside order No. B of the ruling delivered on 2/09/2021:
15.The Applicant herein asks this court to set aside Order No. B of the ruling delivered on 2/09/2021 by Hon. Ondieki and substitute it with an order allowing the application dated 7/06/2021.
16.The Respondent submits that No Appeal was filed against the orders of Hon. Ondieki of 2/09/2021 and this court has no jurisdiction to make such an order as prayed for because it is not sitting on Appeal.
Submissions on behalf of the Applicant
17.That the Applicant herein has never been a registered owner nor a beneficial owner of Motor vehicle registration Number KBZ 860P, the subject motor vehicle.
18.That the Applicant has never participated in the hearing of the trial suit as his advocates who were then on record as representing him as at the time of the trial never informed him of the hearing date and therefore the hearing proceeded without him testifying and producing his evidential documents which he had already handed over to his then Advocate.
19.That consequently, the Trial Court in Machakos CMCC No. 763 of 2015 entered judgment in favour of the Respondent on 16th September, 2020 for General and Special damages in the sum of Kshs. 503,500/- plus costs and interest.
20.That the Applicant only got to know of the afore-mentioned judgment having been entered against him sometimes in June, 2021.
21.That the time allowed to appeal under the relevant law has since lapsed but nevertheless this Honorable court has the power to enlarge such time.
22.That the Respondent herein has since served the Applicant proclamation notices from Betabase Auctioneers and he is fearful of execution.
25.A party is guaranteed right of appeal under the law, however, the appeal ought to be filed and processed according to the law. The applicant by pleadings filed explained the events leading to delay in filing an appeal, he realized hearing and judgment were processed without notice or knowledge on his part until he realized during the execution stage. Whereas there was Counsel on record during the hearing before the Trial Court, it is possible the Applicant was not aware or informed as to the proceedings and /or outcome of the case.Hon. Maureen Odero J. in the case of Bank of Africa Kenya Limited vs. Put Sarajevo General Engineering Co.Ltd & 2 others  eKLR, stated that:-
26.The lack of communication and/or seeking instructions by Counsel who participated in the proceedings on behalf of the Applicant the Trial Court in Machakos CMCC No. 763 of 2015 entered judgment in favor of the Respondent on 16th September, 2020 the instant application was filed on 24th September 2021, a year later. The execution of the judgment was by Proclamation of 21st May 2021. The Court finds the Applicant’s explanation plausible and reasonable in the circumstances.
DispositionDELIVERED SIGNED & DATED IN OPEN COURT ON 16TH DECEMBER 2021 (VIRTUALLY)M.W. MUIGAI JUDGE