The Supreme Court has declined to hear an appeal by BN Kotecha & Sons, dealing a blow to the Kisumu based sugar dealer.
The dealer wanted the apex court to hear its appeal in a fight with Amalo & Company ltd over the supply of goods worth Sh260 million.
But the Supreme Court dismissed the application saying it does not have the jurisdiction to determine the case.
In 2019, the High Court entered an ex parte judgment against BN Kotecha & Sons, after the firm failed to enter appearance.
The sugar dealer later moved to the appellate court arguing that they were condemned unheard but the same was dismissed by a three judge bench forcing the firm to escalate the dispute to the Supreme Court.
Court maintained that the appellants were not condemned unheard, but were heard on their application that was seeking to set aside the default judgment, which application was determined on merit.
Supreme Court judges led by Chief Justice Martha Koome, Mohamed Ibrahim, Smokin Wanjala, Njoki Ndungu and William Ouko said the appeal did not involve the application or interpretation of the constitution.
“We cannot delve into the application for the conservatory orders staying the execution of the judgement by the court of appeal as sought by the petitioners in their notice of motion,” ruled Supreme Court
The B.N. Kotecha & son’s and Hemal Kotecha had pleaded with the Apex court to suspend court of appeal decision pending hearing and determination of the application.
Kotecha contended that that their application met threshold for the court to grant conservatory orders staying the appellate court decision.
The firm also sought to vary an order directing them to deposit security of Sh20 million, explaining that despite the efforts that they have made, they have not been able to raise the amount.
The firm said its finances were tied up in loans advanced to third parties and its financial situation has been further aggravated by the global Corvid 19 pandemic.
However, the judges noted that Kotecha failed to comply with the conditional order for stay of execution that was made by this Court on 2nd September, 2019 and now seeks to have the same set aside, and or varied.
Kotecha urged the Court to review the order because they are unable to raise the security that was ordered due to the company’s dire financial position.
In the order sought to be reviewed, the Court had given Kotecha’s 30 days from the date of the order to deposit the required security, in default of which, the order of stay was to automatically lapse.
“This means that the order of stay lapsed more than one year ago. We have not been told what the situation on the ground is. The applicant has also not explained why it has taken them a year to make the application,” said the appellate court.
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