[2011] KEHC 1027 (KLR)
The court found that the conservatory order issued in Nairobi High Court Petition No.199 of 2010 specifically enjoins all parties maintaining proceedings against Blue Shield Insurance Company and its insured, and includes the present case in its list of affected matters. Allowing execution to proceed in this case...
Source-derived case information.
- Citation
- [2011] KEHC 1027 (KLR)
- Parties
- Appellant: Atanas Barasa; Respondent: Jesca Olala Kanali; Respondent: Miwa Hauliers
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 62 of 2008
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Determination of Related Petition
- Outcome
- application for stay of execution allowed
- Judges
- FN Muchemi
- Legal Topics
- Stay of Execution, Pending Appeal, Conservatory Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Atanas Barasa
Appellant
Jesca Olala Kanali
Respondent
Miwa Hauliers
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Determination of Related Petition
Legal Issues
- 1 Whether a stay of execution should be granted pending the determination of Nairobi Petition No.199 of 2010.
- 2 Whether the conservatory order in the Nairobi High Court Petition applies to the present case.
Ratio Decidendi
The court found that the conservatory order issued in Nairobi High Court Petition No.199 of 2010 specifically enjoins all parties maintaining proceedings against Blue Shield Insurance Company and its insured, and includes the present case in its list of affected matters. Allowing execution to proceed in this case would undermine the conservatory order and potentially render the pending petition nugatory. Although the current status of the petition was not clear from the annextures, the court recognized the binding nature of the conservatory order and the need to preserve the subject matter until the petition is determined. Accordingly, the court exercised its discretion to grant a stay of...
Court Disposition
application for stay of execution allowed
Orders
- Stay of execution granted pending hearing and determination of Nairobi Petition No.199 of 2010.
- Costs in the cause.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT
AT BUNGOMA
CIVIL APPEAL NO.62 OF 2008
(Appeal arising from BGM CM CC NO.452/05)
ATANAS BARASA::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT
~VRS~
JESCA OLALA KANALI::::::::::::::::::::::::::::::::: 1ST RESPONDENT
MIWA HAULIERS :::::::::::::::::::::::::::::::::::::::::::::: 2ND RESPONDENT
RULING
The Applicant/Appellant’s application dated 11/03/2011 seeks for stay of execution pending hearing and determination of Nairobi Petition no.199 of 2010. The Applicant states in the supporting affidavit that he is threatened with execution which order is contrary to Nairobi High Court Petition No.199 of 2010 which is yet to be concluded. The Applicant was dissatisfied with the judgment of this court and intends to appeal. He argues that Blue Shield Insurance Company will not settle the costs until the pending petition is concluded.
The application was opposed on grounds that the order in the High Court Nairobi Petition has nothing to do with this case. Secondly, that the Applicant never applied for stay of costs since the judgment was delivered. He has only come to court after threats to execute were made.
I have perused the order dated 28/10/2010 issued by the petition court. It grants leave to the Petitioner Blue Shield Company to enjoin all parties who are maintaining proceedings against the Petitioner and its insured. A conservatory order restrains all the claimants and interested parties cited in the ancillary suits seeking to satisfy liabilities arising from claims named in the Petitioner. In the attached list of cases, this case before Bungoma HCCC No.62 of 2008 is among those referred to. It follows that if execution is allowed to proceed, the Nairobi High Court Petition may be rendered nugatory. It is regrettable that the annextures do not show whether the case has a hearing date or indicate its current status. However, the order of the High Court in the petition is recognizable by this court. It is expected that the petition will be finalized without much delay to enable the Respondent be paid his costs or execute against the Applicant.
For the above reasons, I allow the application as prayed. Costs in the cause.
F. N. MUCHEMI
JUDGE
Ruling dated and delivered in open court this 7th day of November2011 in the presence of Mr. Onchiri.
JUDGE