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JudgmentMICHAEL MWANGI AND FRANCIS MAINA MUCHUGI VS ZIPPORAH NZISA MUTUA22 min read

MICHAEL MWANGI AND FRANCIS MAINA MUCHUGI VS ZIPPORAH NZISA MUTUA

High Court at Machakos High Court · · Hon.Lady Justice Noel Adagi

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CIVIL APPEAL NO. E166 OF  2024

MICHAEL MWANGI

FRANCIS MAINA MUCHUGI…........................ APPELLANTS/APPLICANTS

VERSUS

America MUTHEU MUTUKU, ZIPPORAH NZIZA

MUTUA & 15 OTHERS………………………………………………… RESPONDENTS

RULING

  1. The Appellants/Applicant’s application dated 14th June 2024 and filed under certificate of urgency. It is premised under on Sections 1A, 1B & 3A of the Civil Procedure Act, Order 42, Rule 6, Order 52 Rule 1 of the Civil Procedure Rules 2010 and all other enabling provisions of the law. The application is supported by the affidavit of Francis Maina Muchugi sworn on the even date.
  2. The Applicant herein prays to Court as follows:

a) Spent.

b)  Spent

  1. That this Honourable Court be pleased to issue a permanent order of stay of execution of the Judgement dated 31st May 2024 in the test suit to wit CMCC No. E1019 of 2022, MAVOKO and all subsequent judgements of the even date in CMCC No. E1018, E1021, E1022, E1023, E1024, E1025, E1026, E1027, E1028, E1029, E1030, E1031, E1032 and E1033 all of 2022 MAVOKO pending hearing and determination of the appeal herein. c) That this Honourable Court be pleased to grant a stay of execution of the Judgement and Decree issued in KARATINA PMCC No. 102 of 2017 pending the hearing and determination of this application.

d) That this Honourable Court be pleased to issue and/or grant any other or further relief that the court may deem just and expedient in the circumstances.

3.      The application is based upon the grounds on the face of the application and supported by the 2nd Applicant’s supporting affidavit sworn on the even date

4.       The application is opposed by the Respondents vide the Replying Affidavit sworn by Zipporah Nzisa Mutua on 31st July 2024 and requests this Honourable Court to dismiss the application with costs to the Respondents.

Factual Background

5.      The Respondents instituted the various suits herein against the Appellants at Mavoko Chief Magistrate’s Court arising from injuries and damages the Respondents suffered as a result of a traffic road accident that occurred on 24/01/2021 involving motor vehicle registration No. KDA 669D in which the Respondents were travelling as fare paying passengers and another vehicle registration No. KCD 067Z. Mavoko CMCC E1019/2022 was selected as the test suit and was prosecuted to finality.

6.  On 31st May,2024 judgement was delivered in favour of the Respondent (Plaintiff) in the test suit for General Damages of Kshs.160,000, Special Damages of Kshs.3,550 together with costs and interests of the suit and all subsequent judgements delivered on the same date, in the following terms;

  1. CMMC E1018/2022- General Damages of Kshs.160,000, Special Damages Kshs.3,550 together with costs and interests of the suit.
  2. CMMC E1021/2022- General Damages of Kshs.150,000, Special Damages Kshs.3,550 together with costs and interests of the suit.
  3. CMMC E1022/2022- General Damages of Kshs.150,000, Special Damages Kshs.3,550 together with costs and interests of the suit.
  4. CMMC E1024/2022- General Damages of Kshs.150,000, Special Damages Kshs.3,550 together with costs and interests of the suit.
  5. CMMC E1025/2022- General Damages of Kshs.150,000, Special Damages Kshs.3,550 together with costs and interests of the suit.
  6. CMMC E1026/2022- General Damages of Kshs.150,000, Special Damages Kshs.3,550 together with costs and interests of the suit.
  7. CMMC E1027/2022- General Damages of Kshs.150,000, Special Damages Kshs.3,550 together with costs and interests of the suit.
  8. CMMC E1028/2022- General Damages of Kshs.150,000, Special Damages Kshs.3,550 together with costs and interests of the suit.
  9. CMMC E1029/2022- General Damages of Kshs.150,000, Special Damages Kshs.3,550 together with costs and interests of the suit.
  10. CMMC E1030/2022- General Damages of Kshs.150,000, Special Damages Kshs.3,550 together with costs and interests of the suit.
  11. CMMC E1031/2022- General Damages of Kshs.150,000, Special Damages Kshs.3,550 together with costs and interests of the suit.
  12. CMMC E1032/2022- General Damages of Kshs.160,000, Special Damages Kshs.3,550 together with costs and interests of the suit.

(xiii)  CMMC E1033/2022- General Damages of Kshs.150,000, Special Damages Kshs.3,550 together with costs and interests of the suit.

7.        The Applicants being aggrieved with the said judgments both on liability and quantum lodged the appeal herein, and filed a Memorandum of Appeal dated 14th June,2024.

8.     The Applicants also filed the instant application seeking for the stay of execution orders pending hearing and determination of the appeal.

9.     The application was canvassed through written submissions of the Parties’ counsel. The Applicant’s submissions are dated 3rd October 2024 whilst the Respondents submissions are dated 15th October 2024.

Analysis and Determination

10.  I have considered the application, the supporting affidavit, the Replying Affidavit and the rival submissions filed by Parties’ counsel as well as the judicial decisions relied upon. In my view, the single most important issue for determination is whether the court should grant the orders sought for.

11.   The law relating to stay pending Appeal is Order 42 Rule 6 (2). It is also important to state that the power to grant an order of stay is discretionary and is dependent on certain conditions being met.

12.   Order 42 rule 6(1) and (2) of the Civil Procedure Rules,2010 provides as follows:

“(1) No appeal or second appeal shall operate as a stay of execution or proceeding under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.

(2) No order for stay of execution shall be made under subrule (1) unless;

(a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and

(b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”

13.    In Vishram Ravji Halai vs. Thornton & Turpin Civil Application No. Nai. 15 of 1990 [1990] KLR 365, the Court of Appeal held that whereas the Court of Appeal’s power to grant a stay pending appeal is unfettered, the High Court’s jurisdiction to do so under Order 41 rule 6 of the Civil Procedure Rules is fettered by three conditions namely:

  1. establishment of a sufficient cause,
  2. satisfaction of substantial loss and
  3. the furnishing of security.

14.       Further the application must be made without unreasonable delay.

To the foregoing, Justice Odunga in Michael Ntouthi Mitheu v Abraham Kivondo Musau [2021] eKLR held that:

“I would add that the stay may only be granted for sufficient cause and that the Court in deciding whether or not to grant the stay and that in light of the overriding objective stipulated in sections 1A and 1B of the Civil Procedure Act, the Court is no longer limited to the foregoing provisions. The courts are now enjoined to give effect to the overriding objective in the exercise of its powers under the Civil Procedure Act or in the interpretation of any of its provisions.

According to Section 1A (2) of the Civil Procedure Act: “the Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective.”

15.  Under Section 1B of the Act some of the aims of the said objective are;

  • the just determination of the proceedings;
  • the efficient disposal of the business of the Court;
  • the efficient use of the available judicial and administrative resources; and
  • the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties.

16.   In Stephen Boro Gitiha vs. Family Finance Building Society & 3 Others Civil Application No. Nai. 263 of 2009, Nyamu, JA on 20/11/09 held inter alia that the overriding objective overshadows all technicalities, precedents, rules and actions which are in conflict with it and whatever is in conflict with it must give way.

17.    The same Judge in Kenya Commercial Bank Limited vs. Kenya Planters Co-Operative Union Civil Application No. Nai. 85 of 2010 held that:

“where there is a conflict between the statute (overriding objective principle) and a subsidiary legislation (rules of the court) the statute must prevail. Although the rules have their value and shall continue to apply subject to being O2 complaint, the O2 principle is not there to fulfil them but to supplement them where they prove to be a hindrance to the O2 principle or attainment of justice and fairness in the circumstances of each case.”

18.  It therefore follows that all the pre-overriding objective decisions must now be looked at in the light of the said provisions. This does not necessarily imply that all precedents are ignored but that the same must be interpreted in a manner that gives effect to the said objective. What is expected of the Court is to ensure that the aims and intendment of the overriding objective as stipulated in section 1A as read with section 1B of the Civil Procedure Act are attained.

19.   It is therefore important that the Court takes into consideration the likely effect of granting the stay on the proceedings in question. In other words, the Court ought to weigh the likely consequences of granting the stay or not doing so and lean towards a determination which is unlikely to lead to an undesirable or absurd outcome. What the Court ought to do when confronted with such circumstances is to consider the twin overriding principles of proportionality and equality of arms which are aimed at placing the parties before the Court on equal footing and see where the scales of justice lie considering the fact that it is the business of the court, so far as possible, to secure that any transitional motions before the Court do not render nugatory the ultimate end of justice.

20.    The Court, in exercising its discretion, should therefore always opt for the lower rather than the higher risk of injustice.

21.    In Butt Vs. Rent Restriction Tribunal [1979], the Court of Appeal gave pointers on what ought to be considered in determining whether to grant or refuse stay of execution pending appeal. The court stated thus:

i.  The power of the court to grant or refuse an application for a stay of execution is a discretionary, and the discretion should be exercised in such a way as not to prevent an Appeal.

ii.  The general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an Appeal may not be rendered nugatory should the Appeal court reverse the judge’s discretion.

iii.  Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the Applicant at the end of the proceedings.

iv.   Finally, the court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances of the case and its unique requirements.

22.     On the first criterion as set out in Order 42 Rule 6 (2) i.e. Whether Applicant/Appellant has brought this application without unreasonable delay. The Judgement was delivered on 31st May 2024. The Memorandum of Appeal was filed on 14th June 2024. The trial court had granted the Applicants 30 days stay of execution which lapsed resulting to filing of the instant application date 14th June 2024 and filed in court on the same date.  In the circumstances, I find that application has been brought without unreasonable delay.

23.   As regards the second criterion as to whether the Applicants/Appellants have demonstrated that they are bound to suffer substantial loss if orders of stay of execution are not granted. The question that follows is what comprises substantial loss. In Silverstein Vs Chesoni (2002)1 KLR 867 it was held that

“The issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the Appeal nugatory”

24.      The Appellants/Applicants have submitted that the application is opposed by the Respondents vide the Replying Affidavit sworn by Zipporah Nzisa Mutua on 31st July 2024 and requests this Honourable Court to dismiss the application with costs to the Respondents. That at paragraph 4 she has deponed that

“THAT I am opposed to the said application save for paragraphs (2) and (3) of the application for stay of execution pending the hearing and determination of the Appeal”.

25.    The Applicant submitted that whereas a perusal of the application will show that the orders prayed for are arranged in alphabets and not numbers the presumption would be that the Respondent is making reference to prayers (b) & (c) of the said application. That from a constructive reading of paragraph 4 of the said replying affidavit, the presumption is that the Respondent is not opposed to the said prayers (b) & (c) thereof. The Applicants’ interpretation and or meaning of the said paragraph is that the Respondent opposes only a part of the notice of motion to wit prayers (a) and (d). The Applicant prayed that the said prayers (b) & (c)remain unopposed and this court to hold as such.

26.    I am not persuaded by the Applicants’ foregoing submissions on the contents of paragraph 4 of the Respondents’ Replying Affidavit and equally do not agree with them. I have read the application and the only place containing numbered paragraphs is the Applicants ’supporting affidavit. I am therefore convinced that the Respondent would probably be referring to the paragraphs 3 and 4 of the Applicant’s supporting affidavit and not to the prayers as presumed by the Applicant in their submissions.

27.   The Applicants further submitted that the Respondents are not only unknown to the Applicants, their place of aboard is also unknown and their means of income are also unknown. The whereabout of the Third Parties who were ordered to indemnify the Applicants are also unknown.

28.   The Respondents including Zipporah Nzisa Mutua who has deponed to the affidavit in reply to the instant application has not addressed the court on the issue of her means of income and instead seems to argue on the merits or otherwise of the Appeal stating that being a successful litigant she ought to at least be paid half of the decretal sum and the balance be deposited in a joint interest earning account.

29. The Applicants fault the single replying Affidavit filed by Zipporah and argue that each of the Respondents ought to have filed their respective replying affidavits as this would have been the only way the court could establish the means of income of each Respondent.

30.    The Applicant in addition submitted that there is no insinuation whatsoever that the said Replying Affidavit by Zipporah has been deposed to on her behalf and on behalf of the other Respondents nor there is any written authority by the other Respondents that has been donated to the Respondent to act on their behalf. The Applicant thus submitted that the instant application save for Zipporah Nzisa Mutua is unopposed by the other 14 Respondents and should be granted as being unopposed. The Applicant relied on the case of National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another (2006) eKLR where the Court of Appeal held that:

“Once an Applicant expresses on the reasonable fact that the Respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the Respondent to show whatever resources he has since that is a matter which is pecuniary within his knowledge”.

The Applicant also cited the case of Century Oil Trading Co. Ltd v Kenya Shell Ltd Nairobi (Milimani) HCMCA No. 156 of 2007.

31.  In light of all the above, the Applicants submitted that in the absence of any material by way of evidence as to Zipporah’s ability to repay the decretal sum or any part thereof in the event that the Appeal succeeds, the Applicants have proved that there is a likelihood that they will suffer substantial loss if the stay sought is not granted.

32.    This court has considered the submissions of the Applicants with regard substantial loss. I have also perused through the record and read the Replying Affidavit of Zipporah Nzisa Mutua and the Respondents submissions to the instant and I have not come across and disclosure of financial means of the said Zipporah orb the rest of the Respondents. I will agree with the Applicants that the Respondents have failed to discharge the evidential burden to show whatever resources they have.

33. I find that the Applicants stand to suffer loss if orders sought are not granted as the Respondents have failed to show that they have the means to refund the decretal sum or part thereof should the appeal be successful. The Applicants have thus demonstrated that they are bound to suffer substantial loss. J

34.     The third criterion is that the Applicants/Appellants must furnish security for the due performance of the decree. I am fully aware that the court has a delicate task of balancing the interests of both the Appellants and the Respondents.  The Appellants who seek to preserve the status quo pending the hearing of the Appeal so that the Appeal is not rendered nugatory and the interest of the Respondents who are seeking to enjoy the fruits of their judgement. It is true that under Order 42 rule 6 aforesaid, the Applicant is required to offer security for the due performance of the decree and the Court is entitled to take into account the fact that no such security has been offered in deciding an application thereunder. I agree with the position in Mwaura Karuga t/a Limit Enterprises vs. Kenya Bus Services Ltd & 4 Others [2015] eKLR, where it was held that:

“… the security must be one which shall achieve due performance of the decree which might ultimately be binding on the applicant. The rule does not, therefore, envisage just any security. The words ‘’ultimately be binding’ are deliberately used and are useful here, for they refer to the entire decree as will be payable at the time the appeal is lost. That is the presumption of law here. Therefore, the ultimate decree envisaged under order 42 rule 6 (2) (b) of the Civil Procedure Rules includes costs and interest on the judgment sum unless the latter two were not granted-which is seldom. The security to be given is measured on that yardstick.”

34.  I also associate myself with the holding in Gianfranco Manenthi & another vs. Africa Merchant Assurance Company Ltd [2019] eKLR, where the court observed:

“… the applicant must show and meet the condition of payment of security for due performance of the decree. Under this condition a party who seeks the right of appeal from money decree of the lower court for an order of stay must satisfy this condition on security. In this regard, the security for due performance of the decree under order 42 rule 6(1) of the Civil Procedure Rules, it is trite that the winner of litigation should not be denied the opportunity to execute the degree in order to enjoy the fruits of his judgment in case the appeal fails.

Further, order 42 should be seen from the point of view that a debt is already owed and due for payment to the successful litigant in a litigation before a court which has delivered the matter in his favour. This is therefore to provide a situation for the court that if the appellant fails to succeed on appeal there could be no return to status quo on the part of the plaintiff to initiate execution proceedings where the judgement involves a money decree. The court would order for the release of the deposited decretal amount to the respondent in the appeal … This the objective of the legal provisions on security was never intended to fetter the right of appeal. It was also put in place to ensure that courts do not assist litigants to delay execution of decrees through filing vexatious and frivolous appeals. In any event, the issue of deposit of security for due performance of decree is not a matter of willingness by the applicant but for the court to determine.”

35.    The law is that where the applicant intends to exercise its undoubted right of appeal, and in the event, it were eventually to succeed it should not be faced with a situation in which it would find itself unable to get back its money. Likewise, the Respondent who has a decree in his favour should not, if the applicant were eventually to be unsuccessful in its intended appeal, find it difficult or impossible to realize the decree. This is the cornerstone of the requirement for security. The issue of adequacy of security was dealt with by the Court of Appeal in Nduhiu Gitahi vs. Warugongo [1988] KLR 621; 1 KAR 100; [1988-92] 2 KAR 100 where the Court of Appeal expressed itself as follows:

“The process of giving security is one, which arises constantly. So long as the opposite party can be adequately protected, it is right and proper that security should be given in a way, which is least disadvantageous to the party giving the security. It may take many forms. Bank guarantee and payment into court are but two of them. So long as it is adequate, then the form of it is a matter, which is immaterial. In an application for stay pending appeal the court is faced with a situation where judgement has been given. It is subject to appeal. It may be affirmed or it may be set aside. The court is concerned with preserving the rights of both parties pending that appeal. It is not the function of the court to disadvantage the defendant while giving no legitimate advantage to the plaintiffs. It is the duty of the court to hold the ring even-handedly without prejudicing the issue pending the appeal. For that purpose, it matters not whether the plaintiffs are secured in one way rather than another. It would be easier for the defendants or if for any reason they would prefer to provide security by a bank guarantee rather than cash. There is absolutely no reason in principle why they should not do so. The aim of the court in this case was to make sure, in an even-handed manner, that the appeal would not be prejudiced and that the decretal sum would be available if required. The respondent is not entitled, for instance, to make life difficult for the applicant, so as to tempt him into settling the appeal. Nor will either party lose if the sum is actually paid with interest at court rates. Indeed, in this case there is less need to protect the defendant because nearly half the sum will have been paid and the balance was at one stage open to negotiation to reduce it”.

36. The Applicants have submitted that they reiterate their submissions that since the application herein has only been responded to by Zipporah Nzisa Mutua, then any orders including security for costs can only be made in respect to her case.

37. The 2nd Applicant has at paragraph 15 of the supporting affidavit deposed that he is ready and willing to abide by terms and or conditions that may be imposed by the court. The total decretal sum awarded to the Respondent Zipporah is Kshs.163,550 out of which the Applicants propose to deposit Kshs.100,00/= as security thereto.

38.  The Applicants submitted that the issue of adequacy of security was dealt with by the Court of Appeal in Ndihiu Gitahi v Warugongo (1988) KLR 621; 1KR 100 (19881992) 2KAR 100 that:

“The process of giving security is one which arises constantly. We echo the sentiment of the Learned Judge e in their findings that “so long as the opposite party can be adequately protected, it is right and proper that the security should be given in a way which is the least disadvantageous to the party giving that security. It may take many forms. Bank guarantee and payment into courts are but two of them.... so long as it is adequate then the form of it is a matter which is immaterial”. The Respondent is not entitled, for instance to make life difficult for the Applicant, so as to tempt him into settling the appeal”.

39. In Re Estate of John Ndungu Mubia (Deceased) (2021) eKLR which placed reliance on the case of Arun C Sharma v Ashana Raikundalia & Co. Advocates where Justice Gikonyo stated that:-

"The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. It is not to punish the judgment debtor.......... Civil process is quite different because in civil process the judgment is like a debt hence the applicants become and are judgment debtors in relation to the respondent. That is why any security given under Order 42 rule 6 of the Civil Procedure Rules acts as security for due performance of such decree or order as may ultimately be binding on the applicants. I presume the security must be one which can serve that purpose."

40.    This court has considered that Applicants’ submission on the condition for security. The Applicants’ stand is that the application herein has only been responded to by Zipporah Nzisa Mutua therefore any orders including security for costs can only be made in respect to her case.

41.    On the issue of security for costs, the Respondents submitted that should this court be constrained to allow the application herein, the same should be done with conditions to order the Applicant to release half of the decretal amount to all the 15 Respondents and deposit the balance into a joint interest earning bank account or impose such other conditions that the court may deem fit to grant in the circumstances.

42.   I am inclined to agree with the arguments put forth by the Applicants that that security for costs can only be made in respect of Zipporah Nzisa Mutua. This court has been made aware that Zipporah Nzisa Mutua is the Plaintiff in the test suit. In my respectful view, a test suit is purely a convenient method for trial of multiple suits against the same defendant (or by one plaintiff against several defendants) where the issues in the suits are the same, and it does not take away the right of the individual plaintiffs, or the defendants in any case to challenge the decision in the test suit or its relevant particular suit on appeal, review or other mode of impugning the decision, as the case may be.

43.  Although the rest of the Respondents have not filed individual Replying Affidavits stating their financial capabilities, it is trite law that grant of stay under Order 42 Rule 6(1) of the Civil Procedure Rules, 2010 is a discretionary remedy; that discretion is only tampered with by Order 42 Rule 6(2) of the Rules which sets out the conditions the Applicant must comply with before the discretion can be exercised in his favour.

44.    Accordingly, the satisfaction of the conditions stipulated in Order 42 Rule 6(2) is not an automatic entitlement to the order of stay of execution pending appeal.

45.    The Court is enjoined to reject an application for stay under Order 42 Rule 6(1) of the Civil Procedure Rules, 2010 if the applicant fails to comply with any of the conditions expressed in Rule 6(2) of that Order.

  In 3 of the 14 suits, the total decretal sum is Ksh.163,550 x 3 = Ksh.490,650/=

The remaining 11 suits, the total decretal sum is Ksh.153,550 x 11= Ksh.1,689,050/=

46.   My position is that since the Applicants in the instant application sought for stay of execution in all the listed suits affected the rest of the Respondents, and for them to be granted the orders sought they have to comply with the conditions expressed in Order 42 Rule 6(2). They can not now in their submissions turn around and seek to only deal with one Respondent when their application is pegged on all the other Respondents.

Who should bear the cost of this application?

47.   On the question of costs of the application, the general rule is that costs shall follow the event in accordance with the provisions of Section 27 of the Civil Procedure Act (Cap. 21).  A successful party should ordinarily be awarded costs of an action unless the court, for good reason, directs otherwise. In Jasbir Singh Rai & 3 others Vs Tarlochan Singh Rai & 4 others SC. Petition No. 4 of 2012: [2014] eKLR. The Supreme Court held that costs follow the event and that the Court has the discretion in awarding such costs.

48.    Taking all the above factors into account and in order not to render the intended appeal nugatory as well as to give effect to the overriding objective of the Civil Procedure Act, I find and hold that the Appellant/Applicant has fulfilled the requirements for grant of stay of execution pending appeal as stipulated under Order 42 Rule 6 of the Civil Procedure Rules save for the issue of security for costs for which he has partially complied.

49.   Accordingly, I hereby allow the Appellant/Appellant’s application dated 14/6/2024 and grant stay of execution as sought in the application pending the hearing and determination of the appeal on the following conditions:

  1. The Appellant/ Applicant shall deposit Kshs.1,000,000/= into a joint interest earning account in a reputable commercial Bank, to be held by both advocates for the Parties to this appeal, within 45 days of this ruling; failure to which execution to issue.
  2. Directions on the disposal of the appeal to be given.

c.  Costs shall be in the appeal;

50. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MACHAKOS THIS 11TH  DAY OF MARCH     2025

          NOEL I. ADAGI

                    JUDGE

In the presence of:

Ms Njomo………………for Appellants

Ms. Naswa……………………..for Respondents

Milly Grace……………Court Assistant

    MICHAEL MWANGI AND FRANCIS MAINA MUCHUGI VS ZIPPORAH NZISA MUTUA MICHAEL MWANGI AND FRANCIS MAINA MUCHUGI VS ZIPPORAH NZISA MUTUA