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JudgmentEUNICE AWUOR BARRACK VS SOLZA LIMITED2 min read

EUNICE AWUOR BARRACK VS SOLZA LIMITED

High Court at Migori High Court · · Anne Ong'injo


  1. The Appellant Eunice Awuor Barack filed Notice of Motion application dated 31.7.2024 seeking orders of temporary stay of the process of execution and sale of subject property being Motor Vehicle Registrant number KCF 349G pending hearing and determination of the Application herein and the appeal to the Court of Appeal. 
  2. The Application is premised on the grounds on face of it and supporting affidavit of the Applicant sworn on 31.7.2024 to the effect that she had filed a Notice of Appeal against the ruling of this court delivered on 30.7.2024 dismissing her application dated 25.3.24.   She averred that the appeal raises serious triable issues of law and fact and has over whelming  chances of success.
  3. She also averred that if orders sought are not granted there is likelihood and danger that the Respondent may at any time proceed and sell the subject motor vehicle  and thus render the appeal nugatory and occasion  substantial and irreparable loss  to her.  She beseeched this court to give her an unconditional  opportunity to test the  veracity of the court’s  decision in dismissing  her application for grant of temporary injunction.
  4. The Appellant averred that she undertakes to reimburse any monies that would be justified on appeal as deserving to the Respondent and that it is in the interest of justice that the application be allowed.
  5. The Respondent opposed the application and raised a preliminary objection dated 18.9.2024 to the effect  that  application was resjudicata as it was already litigated in application dated 6th February 2024 in Rongo MCC No. E007 of  2024 and in Application dated 25.3.2024 in Migori HCCA No. E016 of 2024
  6. The Respondent argued that  the court had no jurisdiction to entertain the application as the Applicant is invoking the jurisdiction improperly by filing multiple applications.   The Respondents annexed their Replying  Affidavit in respect to application dated 25.3.2024, which was dismissed by ruling of 30.7.2024.
  7. The Applicant filed her response to Preliminary Objection and submissions dated 25.9.2024 and 21.10.2024 respectively.
  8. The Application herein has been considered together with the preliminary objection and the submissions for the parties when the Application herein was filed on 31.7.2024 the court noted that it was a replica of the one dated 25.3.2024 which was dismissed vide ruling delivered on 30.7.2024
  9. This court has considered the Applicants application for Stay of execution and find that the same was filed without undue delay.  The same raises serious arguable issues of law and it is in the interest of justice that the Applicant is granted an opportunity to exercise her right of Appeal.  In the circumstances stay of execution is allowed on conditions  that she deposits  security of Kshs. 500,00/= in an interesting earning account in the joint names of the Applicant and the Advocate for the Respondent within 14 days of the ruling.

DELIVERED DATED and assigned at MIGORI this 7th  day of November, 2024.

    EUNICE AWUOR BARRACK VS SOLZA LIMITED EUNICE AWUOR BARRACK VS SOLZA LIMITED