[2012] KEHC 2555 (KLR)
The court found that although the applicants had previously sought and obtained an extension of time, this did not preclude them from seeking a further extension. The applicants provided a sufficient explanation for their earlier inability to comply, citing financial hardship, and demonstrated readiness to deposit...
Source-derived case information.
- Citation
- [2012] KEHC 2555 (KLR)
- Parties
- Appellant: Ahmed Hashi Aden t/a Torry Transporters Company; Respondent: Moses Kipkemoi Siongok; Respondent: Nicholas Rono Sigilai
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 3 & 2 of 2006
- Procedural Posture
- Civil Appeal / Ruling on Notice of Motion for Enlargement of Time and Stay of Execution
- Outcome
- application allowed in part
- Judges
- SP Ouko
- Legal Topics
- Enlargement of Time, Stay of Execution, Attachment of Property, Joint and Several Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ahmed Hashi Aden t/a Torry Transporters Company
Appellant
Moses Kipkemoi Siongok
Respondent
Nicholas Rono Sigilai
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice of Motion for Enlargement of Time and Stay of Execution
Legal Issues
- 1 Whether the applicants are entitled to an extension of time to comply with the court's orders of 7th March, 2012.
- 2 Whether the notification of sale and attachment of goods was irregular.
- 3 Whether the applicants have sufficiently explained their inability to comply within the original time frame.
Ratio Decidendi
The court found that although the applicants had previously sought and obtained an extension of time, this did not preclude them from seeking a further extension. The applicants provided a sufficient explanation for their earlier inability to comply, citing financial hardship, and demonstrated readiness to deposit the required security. The court determined that granting a further extension would not prejudice the respondent. Accordingly, the court exercised its discretion to extend the time for compliance by an additional fourteen days from the date of the ruling.
Court Disposition
application allowed in part
Orders
- Time to deposit the security is extended for a further fourteen (14) days from the date of the ruling.
- Costs of the application are awarded to the respondent.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
Civil Appeal 3 & 2 of 2006
AHMED HASHI ADEN T/A
TORRY TRANSPORTERS COMPANY.................................................................APPELLANT/APPLICANT
VERSUS
MOSES KIPKEMOI SIONGOK....................................................................1ST RESPONDENT/APPLICANT
NICHOLAS RONO SIGILAI..........................................................................2ND RESPONDENT/APPLICANT
RULING
This ruling is in respect of the notice of motion dated 3rd April, 2012 brought under Section 3A and Section 95 of the Civil Procedure Act and Order 22 Rule 59 of the Civil Procedure Rules, seeking enlargement of time fixed by the court to comply with the orders of court issued on 7th March, 2012, stay of execution and that the notification of sale be declared irregular and the respondent be ordered to return the attached goods.
The application is premised on the grounds that the applicants’ goods have been attached in execution of this court’s decree; that the goods attached by the auctioneers were not included in the proclamation dated 29th February, 2012 and that there was never a proclamation of the applicant’s movable assets; that the proclamation made by the auctioneers on 29th February, 2012 was against the 1st applicant, Moses Kipkemoi Siongok and not the 2nd applicant whose property has been advertised for sale; that the time within which the applicants were to comply with the orders of the court of 7th March, 2012 lapsed before they could raise the amount ordered and that the applicants are willing to comply with the orders by depositing in a joint account in the names of their advocate and the respondent’s advocate the sum of Kshs. 250,000/=.
Learned counsel for applicants submitted that they were unable to raise the amount ordered by the court due to lack of finances as they are farmers with meagre income; that the proclamation was done on the wrong person as the attached property belongs to the 1st applicant as opposed to the 2nd applicant against whom the initial proclamation was done; that the applicants bear different burdens and that one cannot bear another’s burden on costs.
Learned counsel for the respondent opposed the application and submitted that the application is res judicata; that the applicants have not applied for review of the amount ordered to be deposited. He contended that there was a proclamation and notification of sale and that there was no apportionment of liability as the decree was joint and several.
I have considered the foregoing submissions by counsel for the parties and the applicable law. It is clear that the applicants had earlier on made a similar application which was granted and time to comply enlarged.
But that per se is not a bar to them to return to court to seek further extension of time. They have sufficiently explained their inability to raise the security. Now that they have been able to do so and are ready and willing to deposit the security, it is only just that they be granted the orders sought. The respondent will not suffer any prejudice. It is therefore ordered that time to deposit the security be and is hereby extended for further fourteen (14) days from the date hereof.
Costs to the respondent.
Dated, Signed and Delivered on this 27th day of July, 2012.
W. OUKO
JUDGE