[2020] KEHC 7186 (KLR)
The High Court found that since it had already granted a stay of execution pending the determination of the appeal to the Court of Appeal, neither the Principal Magistrate's Court nor the High Court had jurisdiction to issue warrants of execution or to revisit the issue of execution. The court further held that any...
Source-derived case information.
- Citation
- [2020] KEHC 7186 (KLR)
- Parties
- Appellant: Board of Trustee Anglican Church of Marsabit; Respondent: Benson Boru Jarso
- Court
- High Court
- Court Station
- High Court at Marsabit
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 6 of 2018
- Procedural Posture
- Civil Appeal / Ruling on Application to Set Aside Warrants of Attachment and Sale
- Outcome
- Application granted.
- Legal Topics
- Stay of Execution, Warrants of Attachment, Appeals Process, Execution of Judgments
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Board of Trustee Anglican Church of Marsabit
Appellant
Benson Boru Jarso
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Set Aside Warrants of Attachment and Sale
Legal Issues
- 1 Whether the warrants of attachment and sale issued against the appellant were irregular, invalid, and unlawful given the stay of execution previously granted.
- 2 Whether the High Court or Principal Magistrate's Court has jurisdiction to address issues relating to the appeal process once a stay of execution has been granted pending appeal to the Court of Appeal.
Ratio Decidendi
The High Court found that since it had already granted a stay of execution pending the determination of the appeal to the Court of Appeal, neither the Principal Magistrate's Court nor the High Court had jurisdiction to issue warrants of execution or to revisit the issue of execution. The court further held that any questions regarding the filing or service of the notice of appeal are matters for the Court of Appeal to determine. As a result, the application to set aside the warrants of attachment and sale was merited and granted, as the execution process was improper in light of the subsisting stay of execution.
Court Disposition
Application granted.
Orders
- The warrants of attachment and sale issued to Quickline Auctioneers on 28.10.2019 are vacated, discharged, set aside, lifted, and/or cancelled.
- The entire execution process is declared irregular, invalid, and unlawful as it was improper in law.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MARSABIT
CIVIL APPEAL NO.6 OF 2018
BOARD OF TRUSTEE ANGLICAN CHURCH OF MARSABIT......APPELLANT
VERSUS
BENSON BORU JARSO......................................................................RESPONDENT
(Being an appeal from the decision and judgement of the Resident Magistrate’s Court
at Marsabit T.M. Wafula R.M. delivered on 30. 10. 2017
in PMCC No.37 of 2016)
R U L I N G
The application dated 7. 11. 2019 seeks the following order:-
That the honourable Court be pleased to vacate, discharge and/or set aside, lift and/or cancel the warrants of attachment and sale issued to Quickline Auctioneers herein on 28. 10. 2019 and to declare the entire execution process herein irregular, invalid and unlawful, as the same is improper in law.
The application is supported by two affidavits of Manasses Kariuki Karoki advocate sworn on 7. 11. 2019 and 26. 11. 2019 respectively. The respondents filed a replying affidavit sworn by Mr. Charles O. Orayo Advocate on 18. 11. 2019. The application was initially filed before the Principal Magistrate’s Court and was referred to this Court on the ground that a similar application was made and a ruling delivered by this Court.
I have read the application and its two supporting affidavits, the submissions by counsel for the applicant, the replying affidavit as well as submissions by the respondent’s counsel. The respondent was involved in a road traffic accident and was awarded general damages. The applicant appealed against the decision of the trial Court. This court heard the appeal and delivered its judgement on 15. 10. 2018. The applicant once again preferred to appeal against the judgement of the Court to the Court of Appeal.
The record further established that the applicant filed an application dated 19. 12. 2018 seeking extension of time to file an appeal (prayer 3) and an order for stay of execution (prayer 4). Prayer 4 of the application reads as follows:-
That upon granting the order in prayer No.3 above, this honourable Court be pleased to issue an order for stay of execution of the Judgment and decree herein pending the filing, hearing and determination of the said intended appeal to the Court of Appeal of Kenya at Nyeri.
This Court delivered its Ruling on 2. 4.2019 and made the following orders:
1. Time for filing Notice of Appeal is hereby extended. The appellant to file its notice of appeal within fourteen (14) days hereof.
2. An order of stay of execution of the judgment and decree herein is hereby granted as prayed in prayer 4 of the appellant’s application aforesaid.
3. The appellant to deposit a sum of Kenya shillings two (2) million in Court within forty five (45) days hereof.
The respondent obtained warrants of execution against the applicant and it is those warrants which led to the filing of the current application. The respondent contend that no notice of appeal was filed within the 14 days extended period and that there is no appeal pending before the Court of Appeal. The applicant is satisfied with the judgement of the High Court and even agreed on costs at Ksh.359,860 by consent. On its part, the applicant maintain that a notice of appeal was filed within the 14 days period and that a sum of Kenya Shillings Two (2,000,000) million was deposited in Court as ordered by the Court.
Given that this Court granted orders staying execution pending the appeal before the Court of Appeal and since a notice of appeal was filed before the Court of Appeal, I do find that both the Principal Magistrate Court and this Court cannot deal with the issue as to whether a record of appeal was filed or not or whether the notice of appeal was served upon the respondent or not. Those issues are the preserve of the Court of Appeal. Having granted stay of execution pending the determination of the Appeal, I do find that the Principal Magistrate Court or the High Court cannot issue warrants of execution until it is shown that the appeal was determined or struck out. I do not wish to belabor much on the application as stay of execution was granted and the Court cannot deal with that issue again.
I find that the application herein is merited and is granted in terms of prayer (3).
Costs shall follow the outcome of the appeal.
Dated, Signed and delivered at Marsabit this 11th day of March, 2020.
S. CHITEMBWE
JUDGE