[2016] KEHC 8303 (KLR)
The court found that the stay of execution granted to the defendants was conditional upon payment of Kshs. 3,000,000/- and deposit of the balance in a joint interest-earning account within the stipulated period. The defendants failed to fulfill the third condition, causing the stay to lapse automatically. The court...
Source-derived case information.
- Citation
- [2016] KEHC 8303 (KLR)
- Parties
- Plaintiff: Alexander Okinda Anangwe (Suing as administrator of the estate of Patricia Kezia Anangwe); Defendant: Reuben Muriuki Kahuha; Defendant: City Hopper Limited; Third Party: Michael A. Craig; Third Party: Reuben Kamander Mburu; Interested Party: Moran Auctioneers
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 1550 of 2005
- Procedural Posture
- Civil Suit / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs to the plaintiff
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Execution, Consent Judgment, Appeals, Enforcement of Decrees
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alexander Okinda Anangwe (Suing as administrator of the estate of Patricia Kezia Anangwe)
Plaintiff
Reuben Muriuki Kahuha
Defendant
City Hopper Limited
Defendant
Michael A. Craig
Third Party
Reuben Kamander Mburu
Third Party
Moran Auctioneers
Interested Party
Procedural Posture
Civil Suit / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the defendants are entitled to a further stay of execution pending appeal after defaulting on the consent order conditions.
- 2 Whether the consent judgment can be set aside on the grounds advanced by the defendants.
- 3 Whether the plaintiff is entitled to proceed with execution after lapse of the conditional stay.
Ratio Decidendi
The court found that the stay of execution granted to the defendants was conditional upon payment of Kshs. 3,000,000/- and deposit of the balance in a joint interest-earning account within the stipulated period. The defendants failed to fulfill the third condition, causing the stay to lapse automatically. The court further held that the defendants had not demonstrated any grounds for setting aside the consent judgment, such as fraud, collusion, or mistake. Additionally, there was no evidence of a substantive appeal, as the notice of appeal was filed out of time. Consequently, the plaintiff was entitled to proceed with execution, and the defendants' application for further stay was dismissed.
Court Disposition
application dismissed with costs to the plaintiff
Orders
- The Notice of Motion dated 6th June 2016 is dismissed with costs to the plaintiff.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
CIVIL SUIT NO. 1550 OF 2005
ALEXANDER OKINDA ANANGWE
(Suing as administrator ofThe estate
of PATRICIA KEZIA ANANGWE….……….….…………………PLAINTIFF
VERSUS
1. REUBEN MURIUKI KAHUHA
2. CITY HOPPER LIMITED……………………..............……DEFENDANTS
MICHAEL A. CRAIG
REUBEN KAMANDER MBURU………………....................THIRD PARTIES
MORAN AUCTIONEERS….…......……………...........INTERESTED PARTY
RULING
The Plaintiff in this suit has a judgment in his favour delivered on 29th May 2015. This Court (Ougo J.) awarded him Kshs. 4,912,756/- plus costs and interest. The Defendants were initially granted 30 days stay of execution but applied formally through notice of motion dated 12th February 2016 which application was compromised on 29th March 2016 by filing consent in the following terms –
“THAT BY CONSENT:-
1. THAT a stay of execution pending appeal be granted to the Judgment-debtors.
2. THAT as a condition to obtaining stay pending appeal that the Judgment- debtor pays the sum of Kshs. 3,000,000/- to the Decree-holder through his Advocate’s account within 14 days of the date of this consent.
3. THAT the balance being the sum of Kshs. 2,598,968/- be invested in a joint interest earning account between M/s Jackson Omwenga & Co. Advocates & M/S Mereka & Co. Advocates in 30 days of this Consent.
4. ………………..”
It would appear the Defendants did not fulfill the third condition in the consent and the Plaintiff moved to execute for the same prompting the application at hand. It is for stay of execution of decree and consent pending appeal by Notice of Motion dated 6th June 2016 principally on the ground that time within which the Defendants were supposed to deposit Kshs. 2,598,968/- had lapsed and the Plaintiff had declined to grant them an extension within which to deposit the same. They further stated that the Interested party herein-Moran Auctioneers had sought to proclaim for an amount of Kshs. 5,599,743/- whereas 3,000,000/- had already been paid as per the consent.
Stay of execution lapsed 30 days after the filing of the consent that is on 1st May 2016. This is because the stay was conditional and in the event of default on any of the orders, the stay of execution granted was to automatically lapse. Therefore the Plaintiff was at liberty to execute.
The Defendants have not convinced the Court that any of the grounds for setting aside a consent judgment exist in this case. Further, there is no evidence of any substantive appeal at the Court of Appeal as it has been conceded that the Defendants’ notice of appeal was filed out of time.
It is to be noted that there is no stay of execution of the decree, the same having lapsed as already noted. In the circumstances, the Notice of Motion dated 6th June 2016 is dismissed with costs to the Plaintiff. It is so ordered.
Dated, signed and delivered at Nairobi this 13th Day of October, 2016.
A. MBOGHOLI MSAGHA
JUDGE