COOPERATIVE BANK OF KENYA LTD VS OWINO KOJO ALIAS VICTOR BRIAN OWINO

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

CIVIL APPEAL   NO. E026  OF  2022

THE CO-OPERATIVE BANK OF KENYA LIMITED………………………………………………….….APPELLANT

VERSUS OWINO KOJO ALIAS VICTOR BRIAN OWINO ALIAS BRIAN OWINO KOJO………….…….………….…1ST RESPONDENT

KHETIA DRAPERS LIMITED…..……..……..…..2ND RESPONDENT

JENKS AUCTIONEERS………………....………INTERESTED PARTY

RULING

1. On the 30th of September 2024,  judgment was entered against the appellant/applicant ( hereinafter referred to as the applicant). The applicant was granted a stay of execution from 30.9.2024 for 30 days. On the 25. 10.2024 the applicant filed an application seeking various orders. The application is brought under sections 1A, 1B, 3A of the Civil Procedure Act and Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules and all other enabling provisions of the law.

2.The applicant is seeking the following orders:

1. spent
2. pending the hearing and determination of the application inter partes there be a stay of execution of the judgment delivered on 30^th September.
3. a stay of execution of the Judgment delivered on the 30th of September 2024 pending the hearing and determination of the Application dated 24th October 2024 filed in Kisumu COACAPPL/E154/ 2024 The Cooperative Bank of Kenya Limited -vs- Owino Kojo alias Victor Brian Owino alias Brian Owino Kojo, Khetia Drapers Limited and Jenks Auctioneers.
4. That there be a stay of execution of the judgment delivered on 30^th September 2024 pending the hearing and determination of the intended Appeal.
5. That the costs of the application be in the cause.
6. The application is supported by the affidavit of Lucy Muthama a legal officer. The application was opposed. I have read the rival affidavits and the submissions filed by the parties. There is no dispute that a party seeking to appeal before the High Court seeks a stay of execution before the High Court, and moves the court under Order 42 Rule 6  of the Civil Procedure Rules.  From the applicant’s affidavit, the judgment was read on the 30^th of September 2024 and thereafter the court gave a stay of execution for 30 days. My understanding of this process is that the applicant was seeking the stay order to be granted either to pay the judgment sum or proceed to the Court of Appeal for a stay order  A reading of prayer 3 of this application indicates that the applicant filed an application before the Court of Appeal Kisumu COAAPPL/E154/2024 which I believe is pending before the Court of Appeal. This application was filed on 24.10.2024. 
7. The applicant seeks a stay of execution of the judgment on the 30^th of September 2024 pending the hearing and determination of the application dated 24.10.2024 filed in Kisumu COAAPPL/ E154/2024. In my view, this court lacks the jurisdiction to grant stay orders on an application pending before the Court of Appeal. This applicant was granted 30 days of execution after delivery of the judgment. The applicant should move to the Court of Appeal to prosecute the pending application. The interim orders granted at this interlocutory stage are therefore set aside.
8. The 1^st respondent has raised the issue of the validity of the Notice of Appeal. The court record shows that the  Notice was filed on 23.10.2024. In my view, it is the  Court of Appeal with the jurisdiction to determine the validity of the said notice. In my previous ruling, I noted that a notice of appeal was filed but this court cannot determine the validity of the said Notice of Appeal.
9. I therefore dismiss the application dated 25.10.2024, with each party to bear its costs.

Dated signed and delivered at Bungoma this 16^th day of January 2025.

R.OUGO

JUDGE

In the presence of:

Miss Jumba h/b Miss Aluvale            For the Applicant

Mr. Kojo              For the 1st  Respondent & Interested Party

2^nd Respondent    - Absent