REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MIGORI HCCA No. E016 OF 2024 EUNICE AWUOR ..............................................................................AP PELLANT VERSUS SOLZA LIMITED COMPANY…………………………………….....RESPONDENT RULING The application before this court is dated 11 th November, 2024 seeking orders that the court extends time within which the Appellant/ Applicant could deposit the amount of Kshs. 500,000/=within 14 days from the date hereof on the grounds that the subject property had already been transferred to a 3 rd party namely Ruth Wangechi Kagori pending hearing and determination of the appeal. That upon prayer above being granted the court issues an order directing that the illegal and unlawful transfer of the subject motor vehicle be reverted back to the name of the Appellant. The Applicant also sought for costs of the application The application was premised on the grounds on its face and supporting affidavit sworn by the Applicant on 11 th November, 2024 to the effect that the Respondent forced the transfer of the subject motor vehicle during the pendency of the application for stay of execution. That by the time transfer was effected the said application had not been determined. HCCA E016 OF 2024 1
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The Applicant also argued that she had filed another application dated 18th October 2024 which sought stay of transfer and before it could be heard the Respondent transferred the subject motor vehicle. The Applicant is apprehensive that if she makes the deposit as ordered by the court she is likely to lose both the vehicle and the money and that she will be exposed to unbearable loss and damage if the subject motor vehicle is not reverted to her name. She said that no prejudice will be suffered by the Respondent if the orders are issued as it will be in the interest of justice. Directions were taken for hearing of the application by way of written submissions and the Applicant/ Appellant filed submissions dated 7 th May 2025. The Respondents were granted leave to file response and submissions on several occasions but it appears they did not do so. This court is therefore going to determine the application based on the Applicants pleadings and submissions on record as per directions taken on 12th May, 2025. This court has considered the application, the grounds, the supporting Affidavit and submissions by the Applicant and do find that the issue arising for determination is whether this court can grant the orders prayed for. The power of the court to extend time is discretionary and is intended to ensure that justice is done to the parties. The Applicant seeks extension of time within which to comply with the conditional stay orders requiring deposit of Kshs. 500,000/= and further seeks an order reverting the transfer of the subject motor vehicle to her name on grounds that the Respondent transferred the motor vehicle to a third party during the pendency of the stay application and before the HCCA E016 OF 2024 2
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application dated 18th October, 2024 seeking stay of transfer could be heard and determined. This court has considered the material placed before it. The Applicant contends that the transfer of the subject motor vehicle was effected while there were pending proceedings touching on stay of execution and stay of transfer. The apprehension expressed by the Applicant is that compliance with the order for deposit of Kshs. 500,000/= without protection of the subject matter would expose her to the risk of losing both the money and the motor vehicle should the appeal eventually succeed. The court notes that the prayer seeking extension of time to deposit the decretal sum is procedural and discretionary in nature. In exercising such discretion, the court is guided by the need to balance the rights of both parties and to preserve the substratum of the appeal. The explanation tendered by the Applicant for failure to comply within time is directly linked to the alleged transfer of the motor vehicle during the pendency of stay proceedings. In the circumstances, the explanation is not unreasonable but since there were no orders restraining the Respondent from transferring the subject motor vehicle and the same having been transferred before the Applicant deposited the security, it would appear that the said order was overtaken by events. The Applicant is not obliged to make the deposit since it was a condition precedent to stay of transfer of the subject motor vehicle. With regard to the prayer seeking reversal of the transfer of the subject motor vehicle to the Applicant’s name, the court notes that the vehicle is alleged to have already been transferred to a third party namely Ruth Wangechi Kagori, who is not a party to these proceedings. Any adverse orders touching on her proprietary interests HCCA E016 OF 2024 3
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would offend the rules of natural justice as she has not been accorded an opportunity to be heard. The court therefore finds that such an order cannot issue in the absence of the said third party being joined to the proceedings. In the result, the court finds that the application is void of merit and the same is dismissed with no orders as to costs. It is so ordered. DATED, SIGNED AND DELIVERED AT MIGORI, THIS 28 TH DAY OF MAY, 2026. ANNE ONG’INJO JUDGE In the Presence of Victor/ Calvins – Court Assistants Applicant – Respondent - HCCA E016 OF 2024 4
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