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JudgmentKENYA RED CROSS HEADQUATERS VS CYRUS OGEMBO MOMANYI2 min read

KENYA RED CROSS HEADQUATERS VS CYRUS OGEMBO MOMANYI

High Court at Nyamira High Court · · Wilfrida A. Okwany


{Being an Appeal against the Ruling of Hon. C. A. Ombija – PM Keroka dated and delivered on 3rd July 2024 in the original Keroka PMC CC No. E058 of 2022}

Background

  1. The Respondent herein was the Plaintiff before the lower court in Keroka PMCC No. E058 of 2022 wherein he sued the Defendant/Appellant seeking damages arising out of a road traffic accident.
  2. The Appellant did not attend court when the matter came up for defence hearing on 21st February 2024 thereby prompting the trial court to close the defence case.  On 26th February 2024, the Appellant filed an application before the trial court seeking, inter alia, orders to set aside the ex-parte proceedings of 21st February 2024 so as to enable it present its case.  The trial court however dismissed the said application on 3rd July 2024 and set down the main suit for judgment on 24th July 2024.
  3. Aggrieved by the said ruling, the Appellant filed the instant appeal through a Memorandum of Appeal dated 16th July 2024. 
  4. The Appellant also filed an Application dated 17th July 2024 before the trial court seeking, inter alia, orders to arrest the judgment set to be delivered by the said court on 24th July 2024. 
  5. It is alleged that on 23rd July 2024, court perused the application dated 17th July 2024 and remarked that the said application had been overtaken by events as a judgment had already been delivered. 
  6. Warrants of attachment in execution of the judgment rendered on 24th July 2024 were served on the Appellant on 9th September 2024 thereby precipitating the filing of the application that is the subject of this ruling.

The Application

  1. The Applicant/Appellant filed the application dated 12th September 2024 seeking the following orders: -
  2. Spent
  3. Spent
  4. THAT while pending the hearing and determination of the appeal, this court be pleased to stay the execution of the warrants of attachment dated 5th September 2024, proclamation notice dated 9th September 2024 by Hegeons Auctioneers.
  5. THAT costs of this application be provided for.
  6. The application is supported by the Affidavit of the Appellant’s Advocate, Mr. Boaz Bosire, and is premised on the grounds that: -
  7. On 9th September 2024, the Appellant was served with warrants of attachment dated 5th September 2024, proclamation notice dated 9th September 2024, a copy of the decree dated 5th September 2024, a copy of the police abstract dated 2nd February 2022 and the Auctioneer's bill of costs dated 9th September 2024 by Hegeons Auctioneers, purporting to recover Kshs. 1,665,157 being decretal and taxed costs in Keroka MCCC No. E058 of 2022, Cyrus Ogembo Momanyi v Kenya Red Cross Headquarters.
  8. The Appellant has since preferred an appeal against the ruling of the trial court delivered on 3rd July 2024, in which the Appellant's application dated 26th February 2024 seeking to re-open the defence case to enable it ventilate its issues/position therein was dismissed, thereby condemning the Appellant unheard under the circumstances.
  9. Despite dismissing the Appellant's application aforestated, the Appellant filed another application dated 17th July 2024 seeking inter alia, an order for arrest of the judgment of the trial court that was scheduled for delivery on 24th July 2024, pending the hearing and determination of the application.
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    KENYA RED CROSS HEADQUATERS VS CYRUS OGEMBO MOMANYI KENYA RED CROSS HEADQUATERS VS CYRUS OGEMBO MOMANYI