Introduction
1. Before me is a Notice of Motion application dated 2nd April 2024 taken out by the Defendant/Applicant herein and is and expressed to be brought under Section 1A, and 3A of the Civil Procedure Act, Order 25 Rule 4 and Order 51 Rule 1 of the Civil Procedure Rules, 2010 and all other enabling provisions, in which the Applicant is seeking orders that: -
i. The application herein be certified urgent and directions on service of the Application be issued by the Honourable Court.
ii. The matter herein be granted a date on priority to any further directions in this Suit.
iii. Further to and consequent to the grant of Prayer (ii) above and pending the hearing and determination of this Application the proceedings in this suit be stayed
iv. The Suit herein be stayed until the settlement, by the Plaintiff/Respondent of the costs of Ksh. 118,090/ awarded to the Defendant/Applicant in COMM CASE NO. E1035 OF 2020, Richard Shimejero Shivogo vs NCBA Bank Kenya PLC.
v. The Court be pleased to issue directions as to the period of time within which the said costs should be settled by the Plaintiff/Respondent failing which this instant Suit be struck off.
vi. The costs of this application be provided for.
2. The application was supported by an affidavit sworn on 22nd April 2022 by Onuonga Makori, an Advocate having the conduct of this matter on behalf of the 1st Defendant/Applicant.
3. According to the deponent, the Plaintiff/Respondent filed a suit before the Magistrate's court, being COMM CASE NO. E1035 OF 2020, Richard Shimejero Shivogo vs NCBA Bank Kenya PLC, which was dismissed with costs vide the Ruling of Hon. H.M. Nyaga (Mr.) dated 21st June 2022 following a preliminary objection by the Defendant/Applicant herein.
4. It is further deponed on behalf of the Defendant/Applicant that vide a ruling of the Honourable court on the 5th May 2023, costs were assessed at Kenya shillings, One hundred and eighteen thousand and ninety shillings (Kshs. 118,090/-) only. That the Plaintiff/Respondent has not settled the costs awarded by the Honourable court in COMM CASE NO. E1035 OF 2020, Richard Shimejero Shivogo vs NCBA Bank Kenya PLC, and that all concerted efforts to locate the Plaintiff/Respondent for settlement of costs have proved futile necessitating this application.
5. The Defendant Applicant therefore urged this court to intervene under Order 25 Rule 7 of the Civil Procedure Rules for the suit herein to be stayed until the Plaintiff settles the costs, in COMM CASE NO. E1035 OF 2020, Richard Shimejero Shivogo VS NCBA Bank Kenya PLC.
6. In response to the Application, the 1st Plaintiff/Respondent relied on an affidavit sworn on 29th April 2024 by Elvis Siema Majani, an Advocate and a Partner in the firm of Wambilianga, Majani & Associates Advocates who are on record for the 1st Plaintiff/ Respondent.
7. It was deponed on behalf of the 1st Plaintiff/Respondent that the 1st Defendant / Applicant filed a Bill of Costs and a ruling was delivered but was never served on the Respondent.
8. According to the deponent, he was only made aware of the said ruling via the Applicant’s Notice of Motion dated the 22nd April 2024. That upon receipt of the Application together with the attached ruling, he immediately informed the Respondent of the same and payments was made to the Applicant with Cheque number 00445 dated 26th April 2024.
9. The Respondent attached a copy of the said cheque to the Application as “ESM -1” and averred that the costs arising from COMM CASE NO: E1035 OF 2020, Richard Shimejero Shivogo Versus NCBA Bank Kenya Plc has been fully settled.
10. On 6th May 2024, directions were taken that the matter proceed by way of written submissions. However, none of the parties filed any submissions. I will therefore proceed and determine the application based on the affidavits filed by both parties.
Determination
11. I have carefully reviewed the Defendant’s application dated 2nd April 2024 and note that the main issue for determination is whether the suit should be stayed. The main ground for the application is that the Plaintiff/Respondent filed a suit before the Magistrate's court, being COMM CASE NO. E1035 OF 2020, Richard Shimejero Shivogo vs NCBA Bank Kenya PLC, which was dismissed with costs vide the Ruling of Hon. H.M. Nyaga (Mr.) dated 21st June 2022 following a preliminary objection by the Defendant/Applicant herein.
12. That on the 5th May 2023, costs were assessed at Kenya shillings, One hundred and eighteen thousand and ninety shillings (Kshs. 118,090/-) but the Plaintiff/Respondent failed to settle the costs awarded by the Honourable court in COMM CASE NO. E1035 OF 2020, Richard Shimejero Shivogo vs NCBA Bank Kenya PLC, and all concerted efforts to locate the Plaintiff/Respondent for settlement of costs have proved futile.
13. The Applicant by this application now seeks to have the instant suit stayed pending the payment by the Respondent of the assessed costs.
14. I note that the Respondent in his affidavit of 29th April 2024 averred that the costs of the subject of the application have been paid. That the same was paid to the Applicant vide Cheque number 00445 dated 26th April 2024.
15. I have reviewed the averments by the Respondent and I am satisfied from the annexures that the costs were indeed paid to the Respondent. In any event, the averments have not been controverted by the Applicant.
16. Consequently, I find no merit in the Motion dated 2nd April 2024 which I hereby dismiss. No costs have been awarded since none of the parties filed submissions in respect of the application.
17. The application for stay by the Defendant having been dismissed, the Plaintiff’s Application dated 9th February 2024 for leave to commence derivative action will now be considered by the court and Ruling delivered on 22nd January 2025.
18. It is so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT
THIS 16TH DAY OF DECEMBER2024
ADO MOSES
JUDGE
In the presence of:
Moses – Court Assistant
Majani - For the Plaintiff/Respondent
………N/A…For the Defendant/Applicant