[2017] KEHC 4854 (KLR)

[2017] KEHC 4854 (KLR)

The court found that the application to strike out the amended plaint was unmerited because the amendment was made pursuant to a consent order, which has the force of a contract and cannot be disturbed except on grounds that would vitiate a contract. On the issue of stay, the court held that the existence of a...

Source-derived case information.

Citation
[2017] KEHC 4854 (KLR)
Parties
Plaintiff: Bhupinder Singh Dogra; Defendant: Coast Development Authority
Court
High Court
Court Station
High Court at Mombasa
Jurisdiction
Kenya
Judgment Date
23 June 2017
Case Number
Civil Suit 158 of 2003
Procedural Posture
Civil Suit / Ruling on Application for Stay of Execution and to Strike Out Amended Plaint Pending Appeal
Outcome
Stay of execution granted on condition; application to strike out amended plaint dismissed; each party to bear own costs.
Judges
CA Otieno
Legal Topics
Stay of Execution, Striking Out Pleadings, Consent Orders, Substantial Loss, Appeal Procedure
Source Language
english
Civil Procedure Stay of Execution Striking Out Pleadings Consent Orders Substantial Loss Appeal Procedure

Source-derived case record

Summary, issues, holding and outcome

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Parties

Bhupinder Singh Dogra

Plaintiff

Coast Development Authority

Defendant

Procedural Posture

Civil Suit / Ruling on Application for Stay of Execution and to Strike Out Amended Plaint Pending Appeal

Legal Issues

  1. 1 Whether the defendant is entitled to a stay of execution of the orders issued on 16th December 2015 pending appeal.
  2. 2 Whether the amended plaint should be struck out.

Ratio Decidendi

The court found that the application to strike out the amended plaint was unmerited because the amendment was made pursuant to a consent order, which has the force of a contract and cannot be disturbed except on grounds that would vitiate a contract. On the issue of stay, the court held that the existence of a notice of appeal suffices for purposes of considering a stay application, and the competence of the appeal is for the appellate court to determine. The court considered the partial nature of the judgment, the public character of the defendant, and the need to balance prejudice. It concluded that justice would be best served by granting a stay of execution pending appeal, conditional...

Court Disposition

Stay of execution granted on condition; application to strike out amended plaint dismissed; each party to bear own costs.

Orders

  • Stay of execution of the orders issued on 16th December 2015 granted pending determination of the intended appeal, conditional upon the defendant depositing the judgment sum or a bank guarantee within 30 days.
  • Application to strike out the amended plaint is dismissed.