[2021] KEHC 3624 (KLR)
The court found that the trial magistrate's order committing the applicant to civil jail without a hearing contravened the applicant's constitutional right to be heard. The application for stay and release was filed promptly, and the applicant demonstrated an arguable appeal. Consequently, the court set aside the...
Source-derived case information.
- Citation
- [2021] KEHC 3624 (KLR)
- Parties
- Appellant: Abdullahi Ismael Nurow; Respondent: Charles Ongere Kaba
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 108 of 2021
- Procedural Posture
- Civil Appeal / Interlocutory Application for Stay and Release From Civil Jail
- Outcome
- Application allowed. Committal order set aside. Applicant released from civil jail. Stay of execution granted pending appeal.
- Judges
- REA Ougo
- Legal Topics
- Stay of Execution, Committal to Civil Jail, Ex Parte Judgment, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abdullahi Ismael Nurow
Appellant
Charles Ongere Kaba
Respondent
Procedural Posture
Civil Appeal / Interlocutory Application for Stay and Release From Civil Jail
Legal Issues
- 1 Whether the applicant is entitled to an order for release from civil jail pending appeal.
- 2 Whether the applicant is entitled to a stay of execution of the default judgment pending appeal.
- 3 Whether the trial court's order for committal to civil jail without a hearing violated the applicant's constitutional rights.
Ratio Decidendi
The court found that the trial magistrate's order committing the applicant to civil jail without a hearing contravened the applicant's constitutional right to be heard. The application for stay and release was filed promptly, and the applicant demonstrated an arguable appeal. Consequently, the court set aside the committal order, ordered the applicant's unconditional release from civil jail, and granted a stay of execution of the default judgment pending the hearing and determination of the appeal.
Court Disposition
Application allowed. Committal order set aside. Applicant released from civil jail. Stay of execution granted pending appeal.
Orders
- The committal order is set aside.
- The applicant is released from civil jail unconditionally forthwith.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
CIVIL APPEAL NO. 108 OF 2021
ABDULLAHI ISMAEL NUROW.......................................APPELLANT/APPLICANT
VERSUS
CHARLES ONGERE KABA....................................................................RESPONDENT
RULING
1. In an application dated the 17/9/2021 the applicant Abdullahi Ismael Nurow seeks that the court suspends and/or order his release from civil jail. He also seeks that the court be pleased to grant an interim order of stay of execution of the default judgment entered in the magistrate’s court pending the hearing and determination of the application inter parties and that there be a stay of execution and or proceedings pending in Kisii CMCC No. 49 of 2021 until the instant interlocutory appeal is heard and determined on merit.
2. The background of this application is that the Respondent sued the applicant in Kisii CMCC No, 49 of 2021 for a sum of Kshs. 13,695,712/=. An ex parte judgment was entered against him in default of filing a defence. Thereafter the applicant sought to have the said ex parte judgment set aside via his application dated the 15/9/2021. The substantive application was set aside for hearing on the 21/9/2021, meanwhile the trial court ordered the applicant to deposit the sum of Kshs. 4,950,000/= in a joint interest earning account in the names of both counsels of both parties in default the applicant stand committed to prison for a period of 30 days.
3. The application is supported by the applicant’s supporting affidavit dated the 17/9/2021. The application was opposed. The Respondent filed a replying affidavit dated the 22/9/2021.
4. The application is brought under sections 3, 3A and Order 42(6) of the Civil Procedure Act.
5. I have read the affidavits filed by the parties. I have also read the proceedings in Kisii CMCC No. 49 of 2021. The application was filed on the 20/9/2021 about 3 days after the committal order. The application was filed within reasonable time. The applicant has demonstrated that the order by the trial magistrate gave a condition that affects his constitutional right and that the lower court caused him to be committed to prison. I note that the trial magistrate dealt with the notice to show cause and granted prayer 3 of the applicant’s application.
6. I do agree with Mr. Bosire submissions that a person cannot be convicted before he is heard. The default condition imposed by the trial court has confined the applicant in prison without being heard. I am inclined to set aside the committal order and order the release of the applicant from civil jail unconditionally forthwith.
7. Further the applicant has indeed demonstrated that he has an arguable appeal and he is entitled to a stay of execution. He is granted a stay of execution pending the hearing of his appeal.
Costs be in the cause.
Dated, Signedand delivered at Kisii this 29th day of September 2021.
R.E. OUGO
JUDGE
In the presence of:
Mr. Bosire for the applicant
Mr. Kimaiyo h/b for Mr. Kaba for the Respondent
Rael Court Assistant