Dickson Moriasi Momanyi v Everlyne Mwanzi Onsongo & 2 others

be ordered to deposit kshs.306,000/- in a joint account within thirty (30) days to enable the applicants eventually prosecute and finalize the appeal. 2. 3. 4. e. That this honourable court do make any such further orders and issue any other relief it may deem just to grant in the interest of justice. f. That the costs of this application be in the cause. The application was premised on the following grounds: a. That in Oyugis Civil Suit No.83 of 2020 – Everlyne Mwanzi Onsongo (Legal & Personal representatives to the estate of Enoch Agai Kopiyo) v Dickson Moriasi Momanyi, judgment was entered for kshs.306,000/- on 13th September 2023. b. That by a ruling dated 23rd October 2023, the application was allowed on condition that the applicant does deposit a sum of deposit Kenya shillings Three Hundred and Six Thousand (ksh.306,000/-) in a joint interest-earning account within thirty (30) days. c. the applicants wrote to the respondent’s advocate requesting him to sign the joint account opening forms and also requesting them to forward other documents. d. That respondent has failed and/or refused and/or declined to sign the consent forms attached to the joint interest account forms stating that there reequipments of the bank are too many vide a letter dated 3/11/2023. e. Due to the aforementioned reason, we could not open a joint interest account and comply with the ruling on 23rd October 2023. f. That failure to comply with the conditions of stay within the required time has not been the fault of the applicant or their advocates, and the applicants are willing to comply if ordered to provide a bank guarantee or deposit Kenya Shillings Three Hundred and Six Thousand (Ksh.306,000/-) in court. g. In view of the foregoing, it is clear that the inability to comply with stay conditions herein is not at all the applicant's fault. h. That, unless the orders sought in this Application are granted, the order of stay of execution granted on 23rd October 2023 will be vacated and the respondent will be at liberty to execute the judgment in Oyugis Civil Suit No.83 of 2020 – Everlyne Mwanzi Onsongo (Legal & Personal reps. to the Estate of Enoch Agai Kopiyo) v Dickson Moriasi Momanyi and the appeal will be rendered nugatory. i. That this application has been made without unreasonable/inordinate delay. j. That in any event this application has been filed timely. k. This application should be granted in the interests of equity and justice. The respondent opposed the application on the following grounds: a. That there are no good reasons for a review of the order issued on the 23rd of October, 2023. b. The respondent has not refused to sign the documents to open a joint account. Order 45 rule 1 provides as follows: (1) Any person considering himself aggrieved— https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17033/eng@2024-04-30 2

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(2) (a) by a decree or order from which an appeal is allowed but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay. A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant or when, being respondent, he can present to the appellate court the case on which he applies for the review. 5. For any party to be granted a review of previously issued orders, there must be a demonstration that either there is an error apparent on the record or the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed. In the instant application, the applicant has not placed himself under the purview of Order 45 of the Civil Procedure rules. 6. The applicant did not attach a document to show that he did his part but was frustrated by the respondent. 7. I find that the application lacks merits. It is, therefore, dismissed with costs. DELIVERED AND SIGNED AT HOMA BAY THIS 30TH DAY OF APRIL 2024 KIARIE WAWERU KIARIE JUDGE. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17033/eng@2024-04-30 3

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