Anand & another v Mwaluma & 2 others

the court judgement. The application is based on eleven (11) grounds marked (a) to (k) and supported by the adavit of Patremy Mwakweka Mwaluma, sworn on the 30th November 2021, inter alia deposing that the defendant had led an appeal through the notice of appeal; that his applications for stay of execution and objection to taxation plus the plainti’s application for release of Kshs.1,250,000 are pending; that the plainti has partially executed the judgement by evicting him from the suit premises on 1st November 2021, demolishing his premises and commencing his development thereon despite the pending appeal; that he has led an application for injunction and stay before the court of appeal, but has been advised to le the instant application so that it does not proceed with the hearing of the applications before it, but wait for the hearing and determinations of the applications and appeal before the Court of Appeal. 2. The application is opposed by the plainti through the grounds of opposition dated 16th February 2024 and replying adavit sworn on 19th February 2024 in which he inter alia deposed that he is the registered owner of L.R 1956/337 and that the instant application is set to delay enjoyment of his fruits of judgment; that he evicted the plainti because he had not complied with the orders dated 15th October 2020 which are what the court took judicial notice of above; that the court refunded him the security of Kshs. 1,250,000 through the order given on 11th November 2022 and that the defendant did not settle the taxed costs; that the Court of Appeal has delivered a ruling dated 20th January 2023 staying execution of taxed costs pending appeal. The plainti also complained of not being served with the memorandum of appeal and that the defendant has not shown his readiness and willingness to prosecute it. 3. The defendant led an adavit of Samuel Odhiambo Eleakim advocate sworn on 4th March 2024, supporting his application by inter alia conrming the Court of Appeal has issued a stay of execution on costs pending appeal. 4. The learned counsel for the defendant and the plainti led their submissions dated the 11th November 2023 and 20th February 2024 respectively. The counsel for the defendant led further submissions dated 4th March 2024. The court has considered all the said submissions. 5. The issues for determinations by the court are as follows: 6. a. Whether the defendant has met the threshold for the orders sought to be issued. b. Who bears the costs? The court has carefully considered the grounds on the application, adavit evidence, submissions by the learned counsel, the record and come to the following ndings: a. That judgement in these suits was delivered on the 10th March 2020 in favour of the plainti. The record shows that the defendant led an application dated 28th April 2020 for stay of execution pending appeal. Conditional interim stay of execution order was granted on 29th April 2020, and directions on service and inter parties hearing were issued. The court heard the application and allowed it in its ruling delivered on the 15th October 2020, on condition the defendant deposits Kshs.1,250,000 in joint interest earning account in the parties counsel names in 30 days, and the taxed costs to be deposited in the said account in 30 days after taxation. b. The record further conrms that the plainti led a party and party bill of costs dated the 18th March 2021 that was taxed on 5th August 2021 at Kshs.1,138,071. Then the defendant led the application dated the 26th October 2021, that sought for “pending the hearing and determination of the reference led in the Court of Appeal, the honourable court be pleased https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13258/eng@2024-11-20 2

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to grant an order of stay of execution of the court’s ruling for failure to deposit the sum of Kshs.1,138,071.” The plainti on his part led the application dated 15th November 2021, seeking for orders that the sum of Kshs.1,250,000 deposited in the joint account be released to him. The two applications were canvassed together and determined through the ruling delivered on 11th November 2022, dismissing the defendant’s application and allowing that of the plainti. c. The record further shows that the defendant moved to the Court of Appeal and led the application dated 5th November 2021 in Civil Application No. E082 of 2021. The Court of Appeal heard the application and vide its ruling of 20th January 2023 granted an order of stay of execution of taxed costs pending the hearing and determination of intended appeal. d. The instant notice of motion dated 30th November 2021 seeks for orders that pending the hearing and determination of appeal before the Court of Appeal, there be stay of proceedings, and an order for judgement creditor to give security of Kshs.15 million, being the approximate value of the plot and structures he demolished in execution of the court judgement. This prayer has two limbs of: i. Stay of proceeding pending hearing and determination of the appeal. ii. An order for judgement creditor to give security of Kshs.15 million, being the approximate value of the plot and structures he demolished in execution of the court judgement, pending the hearing and determination of the appeal. The court has perused the record and noted that there is no pending application in this suit by either of the parties, other than the instant one and an order for stay of proceedings would be of no eect. On the second limb of an order for the plainti to deposit Kshs.15 million as security, pending the hearing and determination of the appeal, this court has already rendered its decision in respect of application for stay of execution pending appeal as can be seen in (a) above. The court is therefore of the view that it is now functus ocio in this suit and the forum for the parties should be before the Court of Appeal that is seized of this matter. e. 7. Under section 27 of Civil Procedure Act chapter 21 of Laws of Kenya, costs follow the event unless where for good cause the court orders otherwise. In this instance, I nd no reason to deviate from that general principle on costs. Having come to the foregoing determinations, the court nds and orders as follows: a. That the defendant’s notice of motion dated the 30th November 2021 is without merit and is dismissed. b. The defendant to pay the plainti’s costs. It is so ordered. DATED, SIGNED AND VIRTUALLY DELIVERED ON THIS 20TH DAY OF NOVEMBER 2024. S. M. Kibunja, J. ELC MOMBASA. In the Presence of: Plainti : No Appearance Defendant : Mr. Odhiambo https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13258/eng@2024-11-20 3

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Leakey – Court Assistant. S. M. Kibunja, J. ELC MOMBASA. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13258/eng@2024-11-20 4

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