[2017] KEHC 1348 (KLR)
The court found that the appellant/respondent had not taken any steps to fix its application dated 4th March 2014 for interpartes hearing and had not provided any reasons for this failure. The court agreed with the respondent/applicant that the appellant/respondent had lost interest in pursuing the application....
Source-derived case information.
- Citation
- [2017] KEHC 1348 (KLR)
- Parties
- Appellant: Beverly Technologies Limited; Respondent: Fidelity Commercial Bank Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 524 of 2013
- Procedural Posture
- Civil Appeal / Ruling on Motion to Set Aside Stay Orders and Release Deposit
- Outcome
- Motion allowed in part; stay orders set aside; request for release of deposit declined; costs to respondent.
- Judges
- JK Sergon
- Legal Topics
- Stay of Execution, Setting Aside Orders, Release of Decretal Sum
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Beverly Technologies Limited
Appellant
Fidelity Commercial Bank Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Motion to Set Aside Stay Orders and Release Deposit
Legal Issues
- 1 Whether the stay orders granted on 6th March 2014 should be set aside.
- 2 Whether the deposit paid into court as part of the decretal sum should be released to the respondent's advocates.
- 3 Whether the appellant/respondent has demonstrated interest in prosecuting its application dated 4th March 2014.
Ratio Decidendi
The court found that the appellant/respondent had not taken any steps to fix its application dated 4th March 2014 for interpartes hearing and had not provided any reasons for this failure. The court agreed with the respondent/applicant that the appellant/respondent had lost interest in pursuing the application. Consequently, the court exercised its discretion to set aside the stay orders granted on 6th March 2014, finding the motion meritorious. However, the court declined to order the release of the deposit paid into court as part of the decretal sum, considering it inappropriate at this stage. Costs of the motion were awarded to the respondent.
Court Disposition
Motion allowed in part; stay orders set aside; request for release of deposit declined; costs to respondent.
Orders
- The orders of Lady Justice R. Ougo made on 6th March 2014 are set aside.
- The request to release the deposit paid into court as part of the decretal sum to the respondent's advocates is declined.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 524 OF 2013
BEVERLY TECHNOLIGIES LIMITED.......APPELLANT/APPLICANT
-V E R S U S –
FIDELITY COMMERCIAL BANK LIMITED..................RESPONDENT
RULING
1) Fidelity Commercial Bank Limited, the respondent/applicant Herein, took out the motion dated 6th June 2017 in which it applied for the following orders:
1. THAT the court be pleased to set aside the orders of Lady Justice R. Ougo made herein on 6th March 2014.
2. THAT deposit paid into court being part of the decretal sum be released to the respondents advocates.
3. THAT costs be provided for.
2) The motion is supported by the affidavit of James Oyuke. When served Beverly technologies Ltd, filed the replying affidavit of John Muthuro Mucheni to oppose the same.
3) When the motion came up for interpartes hearing, the appellant/respondent did not turn up hence the motion proceeded for hearing exparte. However despite the absence of the appellant/respondent, this court is enjoined by law and practice to consider the replying affidavit filed on its behalf.
4) It is the submission of the respondent/applicant that the appellant/ respondent has not taken steps to have its application dated 4th March 2014 prosecuted thus denying the respondent/ applicant the fruits of its decree. This court was urged to set aside the stay orders to enable the respondent/applicant proceed to execute the decree.
5) In the replying affidavit of John Muthuro Mucheni, it is deponed that the appellant/respondent has not ignored the respondent’s claim but it is still following up the issue of getting compensation from Amaco. The respondent further argued that the respondent is the beneficiary of the compensation expected from Amaco. This court was urged not dismiss the motion and instead maintain the appeal.
6) It is not in dispute that the motion dated 4/3/2014 has not been fixed for hearing interpartes. The appellant/respondent has not given any reasons for its failure to have the motion fixed for interpartes hearing. With respect, I agree with the respondent/applicant that it is abundantly clear that the appellant/respondent has lost interest in pursuing the application. I therefore find the motion meritorious. It is allowed in terms of prayer 1. I however find it inappropriate to grant prayer 2 of the motion, therefore I decline the request. Costs of the motion is given to the respondent.
Dated, Signed and Delivered in open court this 17th day of November, 2017.
J. K. SERGON
JUDGE
In the presence of:
..........................for the Appellant
...........................for the Respondent