Sammy Brian Onganga v Ecobank Limited & another [2013] KECA 96 (KLR)

IN THE COURT OF APPEAL

AT KISUMU

(CORAM:  KANTAI, J. A (IN CHAMBERS)

CIVIL  APPLICATION  NO.  47  OF 2013 (UR 21/2013)

BETWEEN

SAMMY BRIAN ONGANGA   ............................................APPLICANT

AND

ECOBANK LIMITED   .................................................1^st RESPONDENT

VALLEY AUCTIONEERS …...............................................2^nd RESPONDENT     

            (An application for stay of execution  from the Ruling and orders of the High Court of Kenya at Kisumu (Hon. Mr. Justice A. K. Kaniaru) dated the 28^th day of  October 2013)     

in

KISUMU E & LC   No.  127  OF 2013)

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RULING

          The Applicant, Sammy Brian Onganga, filed an application by Notice of Motion on 22^nd November, 2013 accompanied by a Certificate of Urgency.   The file reached me on 25^th November, 2013.  I perused the Certificate of Urgency signed by the Applicants Advocates and the Affidavit in Support of Urgency deponed by the Applicant on 21^st November, 2013.  I was not persuaded that the application was urgent and I accordingly refused to certify it as urgent.  This was on 25^th November, 2013.  On the same day 25^th November, 2013 the Applicant through his Advocates wrote  to the Registrar of this Court asking that the file be placed before a Judge under Rule 47 (5) of this Courts' Rules.  So the file reached me again yesterday 26^th November, 2013 when I directed that it be placed for hearing today 27^th November, 2013 for hearing.

          Learned counsel Mr. Onyango for the Applicant and learned counsel for the Respondent Mr. Otieno appeared before me this morning to urge the issue of urgency under the said Rule.

          Learned counsel for the applicant submitted that the respondent had breached terms of a contract subject of the suit at the High Court and the applicant was accordingly aggrieved.  Counsel submitted further that the respondent and the principal borrower had breached terms of contract  even more because the respondent offered more loan facilities to the principal borrower  without reference to the applicant and without his knowledge or consent.  Counsel therefore urged that I grant orders otherwise the application and the intended appeal would be rendered nugatory.

          Learned counsel for the respondent submitted that the application was not urgent and that in any event no useful purpose would be served by certification because the proposed sale is set for today.   Counsel reminded me that I have no jurisdiction as single judge to grant injunction or stay of execution.  Counsel wondered why the application was filed nearly one month after the High Court Ruling and nearly three (3) weeks after an advertisement for sale of the property appeared in the Daily Nation newspaper of 4^th November, 2013. 

          Those were the rival positions  taken in the matter.

          When the file was first placed before me on 25^th November, 2013 I noted that Ruling intended to be appealed was delivered by the High Court on 28^th October 2013.  Although a Notice of Appeal was lodged timeously the application was not filed until 22^nd November, 2013, over 3 weeks later.   The certificate of urgency  and the Affidavit in support thereof showed that the proposed sale of the suit property was scheduled for 27^th November, 2013.  I did not see any explanation why the application was being presented only five (5)  days before the proposed sale and over three (3) weeks after the Ruling by the High Court.

          There is, of course, the added reason, as submitted by learned counsel for the respondent, that I have no jurisdiction as single Judge to entertain a plea for injunction or stay  of execution.

          I was persuaded on 25^th November, 2013 that the application was not urgent because of the reasons I have stated.   I can see nothing new to enable me change that position.   The net effect is that I confirm the position I took on 25^th November, 2013 by stating again that the application is not urgent at all.

          The file will be dealt with by the Court Registry in the normal way and process of getting a hearing date for the application .

Dated and delivered at  Kisumu  this 27^th day of  November,  2013

S. ole Kantai

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JUDGE OF APPEAL

I certify that this is a true

copy of the original

          DEPUTY REGISTRAR