SIMPSON SENDA KWAYERA T/A TELE NEWS AFRICA AND ATLANTIC REGION VS MAOSA THOMAS GICHANA NYAKAMBI P/A MAOSA AND CO. ADVOCATES SIMPSON SENDA KWAYERA T/A TELE NEWS AFRICA AND ATLANTIC REGION VS MAOSA THOMAS GICHANA NYAKAMBI P/A MAOSA AND CO. ADVOCATES

The applicant in this matter has filed an appeal in the Court of Appeal being Civil Appeal No. E777 of 2024. In the appeal the appellant is seeking to overturn the decision of this court declining to have intended interested parties enjoined in the present suit. Further, the applicant contemporaneously filed an application for stay seeking to stay the proceedings in this court pending the determination of the appeal.
The matter before the court of appeal is still pending and counsel for both parties have confirmed to this court that there were no orders for stay that were issued by the Court of Appeal.
It therefore follows that until the Court of Appeal vacates the orders issued by this Honorable court on the 22^nd July 2024 this court cannot halt its proceedings considering that when directions for the disposal of the originating sermons were issued on 22^nd July 2024 both parties were represented by competent and duly authorized counsel thus this court must give effect to its own orders without any further delay.
This court has taken time to peruse the application dated 9^th October 2024 filed by the applicant in the Court of Appeal and there is no doubt in my mind that the applicant is seeking to set aside the orders of this court issued on 22^nd July 2024.
That being so, it is not permissible for the applicant to seek to prosecute before this court the same issue under the guise of a review application number 618 of 2024 which in my view seeks similar orders with those sought in the matter before the Court of Appeal.
It is clear that the Court of Appeal is already seized of the matter and it would be improper for this court to stay its own orders where the Court of Appeal in the first instance declined to do so.
The understanding of the court in directing parties to file written submissions on the 22^nd July ,2024 was that in determining the best mode of disposing off an originating summons, a court would do so after giving an opportunity to counsel for the parties to indicate their desired mode and considering the affidavit filed in support of a motion the court may as well in its discretion direct the matter be disposed off by way of written submissions.
A court may as well consider whether or not witnesses are to be called for purposes of giving evidence however, none of the parties expressed the desire to call witnesses on the 22^nd July ,2024 thus the position advanced by the applicant is clearly an afterthought nothing prevented the counsel who appeared as holding brief for Mr. Maosa on 22^nd July 2024 from a seeking to have the matter heard by way of viva voce evidence.
In the end, this court finds that the application number 618 0f 2024 has no merit considering that the Originating summons is confined to the single issue of how much money ought to have been released by the applicant to the respondent since it is not disputed by both parties that the applicant received money in favor for the respondent.
It is the finding of this court, that to stay these proceedings the court would be abdicating its constitutional duty to have the dispute between the two parties conclusively determined. Similarly this court has not been given any good or sufficient reasons to have the directions of the 22^nd July 2024 reviewed.
The hierarchy of courts in Kenya is foundational to the Rule of Law, ensuring an organized system for the administration of justice. in keeping with the settled hierarchy of our courts, courts must respect this hierarchy by adhering to decisions of higher courts. In effect therefore, where the Court of Appeal has declined to grant stay of proceedings it would be a subversion of the authority of that court if this court were to proceed and grant stay of proceedings the same matter.
In Peter Ngángá Muiruri Vs Credit Bank Limited & Another [2008] eKLR the court held that the appellate structure ensures accountability and legal consistency and disrespecting the hierarchy undermines judicial authority. It is important for this court to point out that the respondent has repeatedly raised the issue of the numerous applications that the applicant has been filing before this court. According to the respondent the applications are calculated to delay the resolution of the main matter.
However, this court is keen on remaining focused on the main question for determination in this matter and in doing so the court will not stand in the way of the applicant in making whatever applications he may desire but the applicant should note that no amount of pressure can be exerted upon this court to distract it from the main course. This court shall proceed as directed in the directions given on 22^nd July 2024 to receive submissions of the parties and proceed to determine the Originating Summons on its merits.
In fairness to both parties, each party should comply with the directions of 22^nd July 2024 within the next seven days from the date hereof. This matter will be mentioned on 9^th December 2024 for allocation of a judgment date.
It is so ordered.

SIMPSON SENDA KWAYERA T/A TELE NEWS AFRICA AND ATLANTIC REGION VS MAOSA THOMAS GICHANA NYAKAMBI P/A MAOSA AND CO. ADVOCATES

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