1. On 25th March, 2025, the plaintiff/applicant herein filed the application dated 24th March, 2025 seeking orders for extension of time to enable her comply with orders of this court made on 20th June, 2024 in regard to depositing taxed costs in court. She also sought an order of temporary stay of execution pending hearing of the said application inter partes. She further sought that the sum of Kshs. 187,664/= deposited in court on 20th March, 2025 representing the taxed costs be deemed to have been deposited in compliance with the conditional stay order made on 20th June, 2024. Lastly, she sought for halting of any execution and an alternative prayer for maintenance of status quo pending hearing of the intended appeal.
2. The application was filed under certificate of urgency and although not certified urgent, the court ordered the applicant to serve the application in one day so that the respondent can file and serve response in 7 days of service. The court granted the applicant one day upon service of response to file and serve supplementary affidavit if need be. It is clear that time lines were strict.
3. The applicant has confirmed compliance with the orders made on 25th March, 2025 and the respondents counsel does not dispute having been served within a day as ordered by the court. The applicant’s counsel has not filed a supplementary affidavit and submissions and stated that he was served with the response and submissions yesterday at 5.33 pm, a time when he had already closed his office. The applicant’s counsel submitted that he was therefore not served on time to enable the applicant exercise her right of filing response to the respondent’s response in one day as directed by the court. He sought for extension of time to file supplementary affidavit and submissions.
4. In response, counsel for the respondent argued that although she was directed to file response in 7 days she complied because there was a holiday within the 7 days. She stated that she computed 7 days excluding the holiday but including the weekend.
5. The applicant’s counsel seeks for orders that status quo be maintained as prevailing in the suit property pending determination of the application herein. That the applicant has been served with eviction notice and eviction is eminent. He implored the court to consider the interests of justice and grant status quo orders pending delivery of the court’s ruling. Counsel relied on provisions of sections 1A, 1B and 3A of the Civil Procedure Act.
6. Responding to the prayer for maintenance of status quo, counsel for the respondent submitted that she did not count the holiday within the 7 days allowed to file and serve response. She further argued that the applicant’s counsel in seeking status quo orders was trying to amend his application as no order for maintenance of status quo had been sought in the application dated 24th March, 2025 and further that the applicant is seeking orders that she is also seeking before the Court of Appeal hence she is forum shopping. She had no objection for the applicant being granted time to file supplementary affidavit and submissions.
7. I have considered the sentiments and submissions on both sides herein. This court ordered the respondent to file response in 7 days of service. The court did not say that the holiday is excluded from the 7 days and therefore there is no basis for the respondent’s assertion that 7 days excluded the holiday which was on 31st March, 2025. Looking at the strict timelines given and the fact that the applicant was only given one day to respond, when the matter was fixed for today and the court was ready to hear the application today, therefore by filing and serving the response after 5 pm yesterday when it was likely that the applicant’s counsel may be out of office, the respondent effectively interfered with the applicant’s right to file their supplementary affidavit. Therefore, it will be unfair and unjust for the applicant to suffer due to the respondent’s choice to file and serve their documents at the last minute. No reason was given for this last-minute compliance. Therefore, in the interest of justice, the applicant deserves opportunity to be heard and substantive justice as enshrined in Article 159 of the Constitution and since her one day for responding to the respondent’s reply was not availed to her due to late service, it is imperative that she is granted time to comply and the substratum of the application is preserved. I find and hold that her prayer for maintenance of status quo ought to be allowed so that the substratum of the application is maintained, and the court does not consider the application in vain. The respondent has not shown any prejudice that he may suffer if status quo orders are granted pending delivery of the ruling.
8. In the premises, the applicant is hereby granted leave of 7 days to file and serve supplementary affidavit and submissions; in view of the fact that the court is proceeding on Easter recess as from next week and thereafter on leave. The court hereby orders that the status quo obtaining as of today in respect to the parcel of land known as Idakho/Shikulu/2339 shall be maintained pending hearing and determination of the application dated 24th March 2025. This matter is now scheduled for ruling on 21st May, 2025 in respect of the application dated 24th March 2025.
9. It is so ordered.
DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THIS 3RD DAY OF APRIL, 2025 THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM.
In the presence of;
Mr. Mamadi for the applicant
Ms. Kadenyi for the respondent
Court Assistant: M. Nguyai