[2012] KEHC 4475 (KLR)
The court held that once a judgment is set aside, there is no longer a decree in existence, and therefore it is irregular to require the applicant to deposit the decretal sum as a condition for setting aside the judgment. The magistrate's order requiring such deposit was stayed pending the hearing of the main...
Source-derived case information.
- Citation
- [2012] KEHC 4475 (KLR)
- Parties
- Appellant: Amos Mwaniki; Appellant: Microfilm Equipment Ltd.; Respondent: Senator Cards Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 675 of 2011
- Procedural Posture
- Civil Appeal / Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution granted.
- Legal Topics
- Stay of Execution, Setting Aside Judgment, Pecuniary Jurisdiction, Decretal Sum, Ex Parte Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Amos Mwaniki
Appellant
Microfilm Equipment Ltd.
Appellant
Senator Cards Limited
Respondent
Procedural Posture
Civil Appeal / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the magistrate erred in ordering the deposit of the decretal sum after setting aside the judgment.
- 2 Whether a stay of execution should be granted pending appeal.
- 3 Whether the magistrate had jurisdiction to order deposit of the decretal sum.
Ratio Decidendi
The court held that once a judgment is set aside, there is no longer a decree in existence, and therefore it is irregular to require the applicant to deposit the decretal sum as a condition for setting aside the judgment. The magistrate's order requiring such deposit was stayed pending the hearing of the main appeal. The court found merit in the applicant's argument that the order was made without jurisdiction and contrary to procedural fairness, as the effect of setting aside is to restore the parties to the position before judgment, with no enforceable decree in place.
Court Disposition
Application for stay of execution granted.
Orders
- Stay of the magistrate's order requiring deposit of the decretal sum pending hearing of the appeal.
- Costs awarded to the applicant.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MILIMANI LAW COURTS
CIVIL APPEAL NO. 675 OF 2011
AMOS MWANIKI..................................... 1ST APPLICANT
MICROFILM EQUIPMENT LTD. ………. 2ND APPLICANT
VERSUS
SENATOR CARDS LIMITED........................ RESPONDENT
R U L I N G
Application for stay of ruling
Pending hearing of appeal on 23rd December, 2011
I.BACKGROUND
1. The original plaintiff /respondent,M/s Senator Cards Ltd, had sued the appellants for nonpayment of a charge card, issued to them by way of a contract between the parties. This agreement was entered into on the 22nd August, 1995.
By 31st August, 1998 the Applicant failed to pay the said sums that amounted to Ksh.900, 541/30.
2. The Applicants changed advocates. An attempt to enter summary judgment to the defence was made. This was set aside by the High Court (Khamoni J.)
3. The hearing of the suit proceeded ex parte and a judgment, dated 14th March 2001, entered in favour of the respondent was made.
4. The applicant applied for its setting aside. By a ruling dated 1st December, 2011, the Principal Magistrate allowed the application to set aside the judgment, BUT made condition that the decretal sum of Ksh.2, 308,165/30 be deposited to court.
5. The applicant filed appeal on 23rd December, 2011 and by application of 23rd December, 2011 prayed that there be a stay of execution of those orders.
II.APPLICATION 23RD DECEMBER 2011
6. The arguments put forward was that the sum of Ksh.2, 308,165/32 was beyond the pecuniary jurisdiction of the said Hon. Magistrate.
7. The request to deposit this sum to court should not be made.
8. In reply the respondent stated that they were in order to have served the advocates formerly on record, due to non-compliance of the Order 9 and 6 Civil Procedure Rules.
9. That the trial magistrate was correct in giving orders that the decretal sum to be deposited to court.
III.OPINION
10. An application to set aside the judgment of the court awarding the respondent Ksh.2, 308,265. 30 was successfully applied for before the Hon. trial magistrate. The effect of setting aside a judgment means that there is no decree on record. It is, therefore, irregular to ask the applicant to deposit the whole decretal sum to court when in fact there is no decree.
11. I would agree with the applicant, that the ruling by the Hon. Magistrate requiring the deposit of the decretal sum to court, after judgment has set aside, be herein stayed pending the hearing of the main appeal.
12. There will be costs to the applicant.
Dated this 7th day of March 2012 at Nairobi.
M. ANG’AWA
JUDGE
Advocates:
i)R.B. Webale instructed by Wambua Njuguna & Kiriba
& Co Advocates for appellant
ii)B. Chege instructed by Muriu Mungai & Co Advocates for
respondent