[2005] KEHC 2281 (KLR)
The court determined that while the defendant raised issues regarding credits for payments made, the judgment was based on his own admission of the debt, less acknowledged payments. The counterclaim was a separate matter and did not justify an unconditional stay of execution. To balance the interests of both...
Source-derived case information.
- Citation
- [2005] KEHC 2281 (KLR)
- Parties
- Plaintiff: Bakari Ali Kasmani; Defendant: Stanley Muema Wanguye
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 238 of 1999
- Procedural Posture
- Civil Case / Ruling on Notice of Motion for Stay of Execution Pending Counterclaim Determination
- Outcome
- application partially allowed with conditions
- Legal Topics
- Stay of Execution, Counterclaim Procedure, Judgment Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bakari Ali Kasmani
Plaintiff
Stanley Muema Wanguye
Defendant
Procedural Posture
Civil Case / Ruling on Notice of Motion for Stay of Execution Pending Counterclaim Determination
Legal Issues
- 1 Whether execution of the judgment should be stayed pending determination of the defendant's counterclaim.
- 2 Whether the defendant should deposit the judgment sum in a joint account as a condition for stay.
- 3 How payments made by the defendant should be accounted for in the judgment sum.
Ratio Decidendi
The court determined that while the defendant raised issues regarding credits for payments made, the judgment was based on his own admission of the debt, less acknowledged payments. The counterclaim was a separate matter and did not justify an unconditional stay of execution. To balance the interests of both parties, the court ordered the defendant to deposit the outstanding judgment sum of KES 810,000 in a joint income-earning account within 30 days. If the defendant defaulted, the plaintiff was permitted to execute for the sum even before taxation of costs. Interest on the sum would abide the outcome of the remaining proceedings, and costs of the application were awarded to the plaintiff.
Court Disposition
application partially allowed with conditions
Orders
- The defendant shall deposit KES 810,000 in a joint income-earning account in the names of the advocates within 30 days.
- In default, the plaintiff may execute for the sum even before taxation of costs.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA Civil Case 238 of 1999
BAKARI ALI KASMANI..................................................................PLAINTIFF VERSUS STANLEY MUEMA WANGUYE................................................DEFENDANT
RULING
The Notice of Motion dated 4-10-04 was filed by the defendant citing several provisions of law. SS 3A, 34, 63 (e) CPA and Order 19 rr. 1, 2, 020 rr.11(1) (2), 16, 18 and O 21 r. 25 CPR. The substantive prayers were:
(1) That Judgement following this court’s ruling of 28-7-04 be stayed until the counterclaim herein is finally heard and determined.
(2) That in the alternativethe execution be stayed pending the ascertainment of the amount actually due and owing under the judgement.
Mr. Muthama argued this application relying on the supporting affidavit plus annextures. These included letter and cheques said to have been paid to the plaintiff/respondent in this case. He also considered the plaintiff’s replying affidavit with annextures. His focus and thrust of submission was that there was no clear picture as to what credits the plaintiff was to give to the defendant following the ruling of 28-7-04 because there were cash and cheque payments but denied. In arguing that some payments had been made since the suit was instituted, it transpired that an error was committed when some cheques pre-dating the filing of the suit on 2-12-99 were included.
Mr. Omollo’s argument was that the judgement was based on the defendant’s affidavit sworn on 16-3-03 admitting owing shs. 1,390,000/-. That three (3) cheques totaling shs. 580,000/= were paid and acknowledged – after the suit was filed. That a third one for shs. 150,000/= (dated 7-12-2000) was paid but received by the defendant’s lawyers on 11-4-2001 and that according to the judgment sum the defendant still owed shs. 810,000/- only. That because the court rules that his counterclaim was a separate suit, and he would see what to do with it, he should not delay to pay as he seeks. He should pay up now or if the court grants him his wish the defendant should deposit the whole judgement sum plus interest and costs in the advocate’s joint income-earning account.
Mr. Muthama simply responded that the costs and interest should await the outcome of the counterclaim.
Having heard counsel and considering the ruling of 28-7-04 this court’s decision is that the applicant do deposit in a joint income-earning account in the joint names of the judgment shs. 810,000/= in the next 30 days. In default the plaintiff to move to execute for the sum even before taxation of costs. Interest will abide the outcome of the remaining part of the proceedings herein.
Costs of this application to the plaintiff.
Orders accordingly.
Delivered on 25-5-2005.
J. MWERA
JUDGE
25-5-2005