- This appeal was instituted vide the memorandum of Appeal dated 29th November, 2024. It was initially filed at the High Court Registry in Migori, whereupon, by an order dated 20th January 2025, it was transferred to this court on the ground that the appeal emanates from the Judgment and Decree of the Resident Magistrate’s Court at Ndhiwa, which is under the administrative jurisdiction of this court.
- The appellant thereafter filed a Notice of Motion dated 13th January 2025 seeking inter alia that stay of execution be granted in respect of Ndhiwa MCCC NO.E0190 of 2023 pending the hearing and determination of he said application and ultimately, pending the hearing and determination of this appeal. Directions on that application were to be given as of 23rd January 2025 when the file was placed before this court for further orders.
- Mr. Bunde for the respondent then brought the court’s attention to the fact that the appellant had obtained similar orders ex parte from the trial court and accused it of forum shopping.
- Upon granting the respondent time to back up his allegations, it was demonstrated by way of a replying affidavit and annexures that indeed the appellant filed a subsequent application for stay of execution before the Magistrate’s Court at Ndhiwa and obtained an order of stay ex parte, pending hearing inter partes on 4th February 2025.
- Granted the foregoing scenario, the appellant filed a Notice of Withdrawal of the application dated 13th January 2025. On the basis of that Notice the appellant’s counsel prayed that the said application be withdrawn with no order as to costs.
- Counsel for the respondent opposed that application for withdrawal, contending that since the instant application was the first in time to be filed, it should be sustained for determination on the merits. In his view the application before the Ndhiwa court is what ought to be stuck out for being sub-judice.
- Having carefully considered the submissions of the parties in the light of the documents filed herein there is no gainsaying that an order of stay of execution has already been made and issued by the trial court. Any striking out of such order on the ground of sub-judice or such other grounds as has been sought by counsel for the respondent can only be made by the lower court.
- In the premises, I find no justification for declining the appellant’s application for withdrawal. The same is hereby allowed; Granted the conduct of the appellant in filing similar applications before different forums, and considering that the application filed herein was the first in time, it is hereby ordered that the costs thereof be borne by the appellant in any event.
Dated, signed and delivered virtually at Homa Bay this 28th day of January, 2025.