The Appellant appeals against the ruling of the Subordinate Court dated 02.02.2024 ordering release of Mercedes Benz registration number KCT 567T to the 3rd Respondent who was the interested party in the suit. She has filed the Amended Notice of Motion dated 15.02.2023 seeking a stay of execution of the ruling and a stay of the proceedings.
In her plaint dated 01.08.2023, the Appellant’s case is that she entered into an agreement with the 1st Respondent to import a Range Rover from the United Kingdom for Kshs. 15,544,560.24. She paid a deposit of Kshs. 8,000,000.00 on 16.03.2023. The 1st Respondent did not deliver the motor vehicle as agreed hence the parties entered into an Agreement for Refund dated 09.06.2023 under which the 1st Respondent undertook to make a refund by 26.06.2023. When the 1st Respondent failed to pay the refund, on 05.07.2023 it was further agreed that they would have hand over a Mercedes Benz which would be held pending the payment of the refund. To date, the Appellant has yet to be paid. She accuses the Respondents of involving the police is a scheme to defraud her. She prays for a refund of Kshs. 8,000,000,00, general damages, costs and interest.
I have considered the parties’ depositions and oral submissions by their counsel on record and I take the following view of the matter. Whether the court should stay the ruling of trial court is a matter of discretion. The court is obliged to consider whether the Appellant will suffer substantial loss if the order of stay is not granted.
In this case, the I cannot say that the Appellant will suffer substantial loss. This is because from her own pleadings annexed to her deposition in support of the application, the Appellant seeks damages. She does not make any claim for her vehicle thus if the appeal and the suit ultimately succeeds, her remedy is that of damages. Moreover, there is paucity of material upon which the court may consider staying the what is in effect release of the motor vehicle to the 3rd Respondent. The Appellant has not provided copies of the agreements that demonstrate that she has a proprietary interest in the motor vehicle that can be protected by an order of stay of the ruling. I do not see any reason to stay the proceedings in this matter as the parties will have the opportunity to ventilate all their issues before the trial court.
The Amended Notice of Motion dated 15.02.2023 is dismissed. Costs of the application shall be in the appeal.
DATED and DELIVERED at NAIROBI this 26th day of FEBRUARY 2023
D. S. MAJANJA
JUDGE