[2020] KEHC 3041 (KLR)
The court found that the applicant's appeal had already been dismissed and no further appeal had been preferred. The existence of a declaratory suit between the applicant and her insurer was deemed irrelevant to the respondent's right to execute the judgment, as the respondent was not a party to that contract and...
Source-derived case information.
- Citation
- [2020] KEHC 3041 (KLR)
- Parties
- Respondent: Agnes Chepus; Applicant: Margaret Goko
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 28 of 2016
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Declaratory Suit
- Outcome
- application dismissed with costs to the respondent
- Judges
- HK Chemitei
- Legal Topics
- Stay of Execution, Declaratory Suit, Judgment Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Agnes Chepus
Respondent
Margaret Goko
Applicant
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Declaratory Suit
Legal Issues
- 1 Whether a stay of execution should be granted pending the determination of a declaratory suit between the applicant and her insurer.
- 2 Whether the existence of a declaratory suit affects the respondent's right to execute the judgment.
Ratio Decidendi
The court found that the applicant's appeal had already been dismissed and no further appeal had been preferred. The existence of a declaratory suit between the applicant and her insurer was deemed irrelevant to the respondent's right to execute the judgment, as the respondent was not a party to that contract and the outcome of the declaratory suit would not affect her entitlement under the decree. The applicant had not demonstrated any effort to settle the decree or provided sufficient grounds for the grant of a stay. Consequently, the application for stay of execution was found to be without merit and was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application dated 10th June 2020 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KITALE
CIVIL APPEAL NO. 28 OF 2016
AGNES CHEPUS....APPELLANT/RESPONDENT
VERSES
MARGARET GOKO............................APPLICANT
RULING
1. The applicant vide her notice of motion dated 10th June 2020 has prayed for the following reliefs;
(a) that there be stay of execution of this court’s judgement dated 17th October, 2018 pending the hearing and determination of this application.
(b) that there be stay of execution herein pending the hearing and determination of a declaratory suit namely KITALE CMCC NO. 425 OF 2019 between the Applicant and AFRICA MERCHANT ASSUARANCE COMPANY LIMITED.
2. The application is premised on the grounds thereof and the sworn affidavit of the applicant dated 10th June, 2020. Basically the applicant acknowledges the judgement of this court dated 17th October, 2018 in which it dismissed her appeal. She has filed a declaratory suit against her insurers namely AMACO LTD vide suit No. 32 of 2019.
3. While at it the respondent has filed a notice to show cause against the applicant in which she has threatened to execute against her. In that respect therefore the applicant is apprehensive that should this application be denied then she stands to suffer loss and damage and the declaratory suit shall be rendered null and void.
4. The Respondent through her Replying Affidavit sworn on 1st June 2020 has opposed the application stating that she has been waiting for the fruits of her judgement for a long time and thus the application should never be allowed. She said that the declaratory suit does not in any way affect this suit and the impending execution. That the Applicant was all along aware of this appeal and she has not done anything to settle the same. She prayed that the application be dismissed.
5. The court has perused in detail the application as well as the rival affidavits. It is obvious that the applicants appeal was dismissed and she has not preferred any appeal to the Court of Appeal. The only solution is to settle the decree.
6. The issue of the declaratory suit has nothing to do with this appeal since the same has to do with the Applicant and her insurance company. The Respondent respectfully is not privy to the contract between the Applicant and her said insurance company. Whatever the outcome between her and AMACO ltd shall be decided in the said declaratory suit which the Respondent is not even a party.
7. Consequently, and without wasting much judicial time the application is not meritorious at all. At any rate there is no evidence that the Applicant has taken any iota of effort to settle the decree.
8. The application is otherwise dismissed with costs to the respondent.
Dated, signed and delivered at Kitale this 16th day of September 2020.
________________
H. K. CHEMITEI
JUDGE
16/9/2020
In the presence of:-
Munialo holding brief for Ambutsi for Respondent/Applicant
Bisonga for Gacathi for Appellant/Respondent
Court Assistant - Kirong
Ruling delivered in open court.