[2012] KEHC 1386 (KLR)
The court found that the applicant failed to comply with the clear and reasonable conditions set by the lower court for setting aside the ex parte judgment, namely depositing the decretal sum and paying assessed costs within the stipulated time. The applicant's failure to fulfill these conditions rendered her...
Source-derived case information.
- Citation
- [2012] KEHC 1386 (KLR)
- Parties
- Appellant: Antonina Ouma Ochino; Respondent: Willis Ogola Okendo
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 33 of 2012
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution and to Vacate Lower Court Orders
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Stay of Execution, Setting Aside Ex Parte Judgment, Compliance With Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Antonina Ouma Ochino
Appellant
Willis Ogola Okendo
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution and to Vacate Lower Court Orders
Legal Issues
- 1 Whether the applicant is entitled to an order vacating the lower court's orders and stay of execution pending appeal.
- 2 Whether the applicant complied with the conditions set by the lower court for setting aside the ex parte judgment.
- 3 Whether the conditions imposed by the lower court were reasonable and justified.
Ratio Decidendi
The court found that the applicant failed to comply with the clear and reasonable conditions set by the lower court for setting aside the ex parte judgment, namely depositing the decretal sum and paying assessed costs within the stipulated time. The applicant's failure to fulfill these conditions rendered her application for stay of execution and to vacate the lower court's orders without merit. The court further noted that the applicant did not demonstrate any inability on the part of the respondent to refund the decretal sum should the appeal succeed, nor did she provide sufficient grounds for review. The application was therefore dismissed to allow the respondent to enjoy the fruits of...
Court Disposition
application dismissed with costs to the respondent
Orders
- The application dated 20-3-2012 is dismissed with costs to the respondent.
- The respondent is at liberty to proceed with execution of the judgment.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
High Court at Kisumu
Civil Appeal 33 of 2012 [if gte mso 9]><xml>
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ANTONINA OUMA OCHINO.............................................................APPELLANT
VERSUS
WILLIS OGOLA OKENDO............................................................RESPONDENT
R U L I N G
The application dated 20-3-2012 seeks that this court vacate the orders issued by the Bondo SRMCC No. 14 of 2008 as well as stay of execution pending the hearing and the determination of the appeal herein.
The affidavit of Antonina Ouma Ochino sworn on 20-3-2012 confirms that the ex -parte judgment entered against her on 24-6-2011 was set aside conditionally. The condition which are contained in the replying affidavit of the respondent sworn on 23-4-2012 are that:-
(a)The first defendant to deposit the decretal sum in court within 7 days from the date of this ruling.
(b)The 1st defendant to pay the costs of this application and throw away costs all assessed at Kshs 20,000/= within seven days from the date of this ruling.
(c)Failure to comply with any of the above conditions, the application to stand dismissed with costs and execution to issue.
The applicant did not fulfill the said conditions. She however sought to review the ruling of the court and although there is no evidence of such her affidavit states as much.
Is the application meritorious at all? I do not find any merit at all. The lifeline handed over to the applicant was not met. This court acknowledges the sentiments of the respondent who apparently acts in person.
The conditions imposed by the lower court were reasonable. Beside this the applicant has not demonstrated that the respondent, in the event that her appeal succeeds cannot pay the amount in issue. The applicant in my opinion has been trying to bid time as evidence by the application at the lower court and now before this court.
Let the respondent enjoy the fruits of his judgment. The application is otherwise dismissed with costs to the respondent.
Dated, signed and delivered at Kisumu this 22nd day of October 2012.
H.K. CHEMITEI JUDGE
In the presence of:
In person for the applicant
Onyango for the respondent