1.For the determination is the Notice of Motion dated 18/6/2021 (the application) the Notice to Show Cause why the appeal should not be dismissed for want of prosecution.
2.The application is based on the grounds found on its face and the supporting affidavit of Rajesh Bhargava sworn and dated on 18/6/2021. The applicant is seeking the following orders:-a.Spent.b.Spent.c.That pending the hearing and determination of the appeal, this court be pleased to order stay of execution of the aforementioned judgement, decree and all consequential orders thereto.d.Costs of this application be provided for.
3.The applicant deponed that the appellant was sued in Migori CMCC No. 669 of 2016 James Omoga Ayiema vs Transmara Sugar Co. Ltd; that judgement was delivered on 22/6/2020 and the appellant was ordered to pay Kshs. 346, 920 be with costs plus interest; that being dissatisfied with the said judgement, the applicant preferred the instant appeal but the applicant’s previous counsel inadvertently failed to seek for stay of execution; that the applicant came to know of the judgement on 10/6/2021 when there was a threat to execute the decretal amount; that the applicant stands to suffer loss if the stay of execution is not granted.
4.The application was opposed. The respondent filed a response through a replying affidavit dated 20/10/2021. The respondent deponed that the applicant has not come to this court with clean hands; that there is already on record a consent dated 28/8/2020 which stated that the entire decretal amount of Kshs. 823, 290 as of 28/8/2020 was to be deposited by the applicant in a joint interest earning account in the names of the advocates within 30 days from the date of filing the consent pending the hearing and determination of the instant appeal; that the said consent had already settled the issue of mode of security to be deposited; that the 30 days lapsed on 15/10/2020 without the applicant honouring the terms of the consent; that the said consent has never been set aside even though clause 3 has been breached.
5.The respondent further deponed that there is no justifiable reason given by the applicant to warrant change of the mode of security almost one year after the applicant has breached the terms of the consent without seeking extension of the timelines set. The respondent urged the court to dismiss the application.
6.None of the parties filed written submissions. I have carefully considered the application, the notice and the respective responses thereto. The only issue for determination is:-Whether the applicant is deserving of a stay order pending the determination of the appeal.
7.The respondent deposed that there is already a consent dated 18/8/2020 in which both parties agreed on the amount to be deposited in a joint interest earning account in the name of both advocates pending the hearing and determination of the appeal. The applicant filed an application before this court seeking stay pending the appeal. On 25/6/2021, this court issued a temporary stay with the condition that the applicant do provide a bank guarantee of the decretal sum within 10 days as condition for stay. In default thereof, the order would automatically lapse.
8.There being a consent order already on record outlining the stay conditions, it was not proper for the applicant to approach this court again asking for similar orders while others are still subsisting. The applicant ought to have first complied with the consent order before seeking to proceed with the prosecution of its appeal. Even with the stay conditions granted on 25/6/2021, the applicant has not demonstrated that it has complied with the orders.
9.The consent order of 18/8/2020 has neither been varied nor set aside. The consent still subsist and should be adhered to by both parties unless a party moves the appropriate court to vary it. The appellant is once again directed to comply with the consent orders of 18/8/2020 as a condition of stay pending the hearing and determination of this appeal.This court therefore issues the following orders;a.The application dated 18/6/2021 be and is hereby dismissed;b.The parties are directed to comply with the consent terms dated 18/8/2020 within 14 days of this ruling and in default thereof the stay shall lapse automatically;c.For avoidance of doubt, the stay orders granted by this court dated 25/6/2021 are hereby vacated;d.The applicant to file and serve submissions to the appeal within 14 days of this ruling;e.The respondent to file a response within 14 days of service;f.The orders shall apply to HCCA No. 39 of 2020, HCCA No. 25 of 2020 and HCCA No. 33 of 2021.g.Costs of shall be in the cause.h.Mention on 22/11/2022, to confirm compliance before the Deputy Registrar.