Japheth Amenya Ratemo the decree holder herein has filed an application dated 6th June 2024 seeking orders that this Honorable Court be pleased to Review its ruling dated 4th day of June, 2024 by directing that the Ruling dated day of June, 2024 be set aside and that the judgment debtor’s (appellant’s) application dated 9th Day of May 2024 be heard on its Merits with both Parties pleadings being taken into account. The costs of this application be provided for.
The grounds of the application are that this Honorable Court read and delivered the judgment in this suit on the 14th day of March, 2024. Counsel for the Appellant was directed on the 14th day of March, 2024 to file a Formal Application for Stay of execution within 15 days but failed to do so yet the Judgment was available to the Parties as early as the 18th day of March, 2024.
Counsel for the appellant filed an Application dated 9th May seeking Stay of execution which Application came up for hearing on the 4th day of June, 2024 and the Honorable Court issued Exparte Orders without the input of the Respondent\'s Replying Affidavit.
Counsel, for the Respondent had filed a Replying Affidavit to the the Appellant Notice of notion dated 9th day of May, 2024 on the 3rd day of June, 2024 and paid for Kshs.750/= and was issued with mpesa Reference No. SF42CMY30W FOR A/C NO. E3CDW8R2 for the Response to the Appellant Motion dated 9th day of May, 2024. He Served the Appellant with a copy of replying affidavit but Counsel chose to mislead the Honorable Court to grant then Orders unfairly through \'Misleading information that the application was unopposed.
Counsel for the Respondent experienced technical issues in logging on the online platform and as at the time for logging in the court had already issued Exparte orders to the Appellants Application dated 9th day of May, 2024 despite the Respondent having filed and served the Appellant with Replying affidavit dated 30th day May 2024.
The application is opposed by the judgment debtor. The replying affidavit was sworn by Karungu Inyanje who states that counsel for the Applicant herein is misleading the court and, attempting to sanitize their deeds as they did indeed failed to respond and serve in due time and therefore on the face of it and to the court when the Application dated 9 1b May, 2024 came up for directions and/or hearing on the 4th June,2024, the same was prima facie unopposed and that further to the above, the court directed that security of costs of be deposited by the Applicant/Appellant on the premise that the prerequisites for granting stay of execution pending Appeal had as enunciated in paragraph 9 of this Replying Affidavit had been proved to the court and therefore, the honorable court is functus officio, on matters stay in the suit herein.
The respondent contends that the directions given by the Honourable court on 4th June, 2024 are meant to safeguard the subject matter in the trial court known as plot no 34. Miti Mingi Settlement Scheme no 722, as enshrined under article 40 of the Constitution of Kenya 2010, land is highly valuable, highly emotive and the same if allowed to be dispensed with shall result in substantial loss that cannot be compensated by damages, as duly ordered by the court and that matters as to facts and law are both disputed by the Appellant and therefore, it is only prudent that the same is ventilated before the court of Appeal on merit and with finality as the Appellant/Applicant avers that there was breach of contract an only received 10% of the same with the Applicant/.Defendant defrauding me of the suit property and similarly breaching and frustrating the contract
I have considered the application, affidavits on record and do find that the applicant has given sufficient reasons for failure to attend court as he experienced some technicalities in logging into the courts system and therefore has good grounds for the review of the order made on the 4th June 2024. Moreover the replying affidavit had been filed on the 3rd June 2024 indicating that the applicant was desirous to oppose the application. The application was made without unreasonable delay and therefore the courts discretion shall be exercised to the applicants favour. I do allow the application and direct that the application dated 9th May 2024 be heard on merit. The applicant to file submissions within 5 days. The respondent to file submissions within 5 days of service. Ruling on 31st October 2024.
RULING DATED, SIGNED AND DELIVERED ELECTRONICALLY ON 3RD OCTOBER 2024.
The grounds of the application are that this Honorable Court read and delivered the judgment in this suit on the 14th day of March, 2024. Counsel for the Appellant was directed on the 14th day of March, 2024 to file a Formal Application for Stay of execution within 15 days but failed to do so yet the Judgment was available to the Parties as early as the 18th day of March, 2024.
Counsel for the appellant filed an Application dated 9th May seeking Stay of execution which Application came up for hearing on the 4th day of June, 2024 and the Honorable Court issued Exparte Orders without the input of the Respondent\'s Replying Affidavit.
Counsel, for the Respondent had filed a Replying Affidavit to the the Appellant Notice of notion dated 9th day of May, 2024 on the 3rd day of June, 2024 and paid for Kshs.750/= and was issued with mpesa Reference No. SF42CMY30W FOR A/C NO. E3CDW8R2 for the Response to the Appellant Motion dated 9th day of May, 2024. He Served the Appellant with a copy of replying affidavit but Counsel chose to mislead the Honorable Court to grant then Orders unfairly through \'Misleading information that the application was unopposed.
Counsel for the Respondent experienced technical issues in logging on the online platform and as at the time for logging in the court had already issued Exparte orders to the Appellants Application dated 9th day of May, 2024 despite the Respondent having filed and served the Appellant with Replying affidavit dated 30th day May 2024.
The application is opposed by the judgment debtor. The replying affidavit was sworn by Karungu Inyanje who states that counsel for the Applicant herein is misleading the court and, attempting to sanitize their deeds as they did indeed failed to respond and serve in due time and therefore on the face of it and to the court when the Application dated 9 1b May, 2024 came up for directions and/or hearing on the 4th June,2024, the same was prima facie unopposed and that further to the above, the court directed that security of costs of be deposited by the Applicant/Appellant on the premise that the prerequisites for granting stay of execution pending Appeal had as enunciated in paragraph 9 of this Replying Affidavit had been proved to the court and therefore, the honorable court is functus officio, on matters stay in the suit herein.
The respondent contends that the directions given by the Honourable court on 4th June, 2024 are meant to safeguard the subject matter in the trial court known as plot no 34. Miti Mingi Settlement Scheme no 722, as enshrined under article 40 of the Constitution of Kenya 2010, land is highly valuable, highly emotive and the same if allowed to be dispensed with shall result in substantial loss that cannot be compensated by damages, as duly ordered by the court and that matters as to facts and law are both disputed by the Appellant and therefore, it is only prudent that the same is ventilated before the court of Appeal on merit and with finality as the Appellant/Applicant avers that there was breach of contract an only received 10% of the same with the Applicant/.Defendant defrauding me of the suit property and similarly breaching and frustrating the contract
I have considered the application, affidavits on record and do find that the applicant has given sufficient reasons for failure to attend court as he experienced some technicalities in logging into the courts system and therefore has good grounds for the review of the order made on the 4th June 2024. Moreover the replying affidavit had been filed on the 3rd June 2024 indicating that the applicant was desirous to oppose the application. The application was made without unreasonable delay and therefore the courts discretion shall be exercised to the applicants favour. I do allow the application and direct that the application dated 9th May 2024 be heard on merit. The applicant to file submissions within 5 days. The respondent to file submissions within 5 days of service. Ruling on 31st October 2024.
RULING DATED, SIGNED AND DELIVERED ELECTRONICALLY ON 3RD OCTOBER 2024.