[2009] KEHC 605 (KLR)
The court found that the application for stay of execution was incompetent because a stay order granted by Osiemo, J on 15th June, 2006, was still in force and had not been discharged. Therefore, the present application was res judicata. Additionally, the court held that the applicant's attempt to introduce new...
Source-derived case information.
- Citation
- [2009] KEHC 605 (KLR)
- Parties
- Plaintiff: Boniface K Kamau; Defendant: Justus Mathenge Nduhiu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 930 of 1985
- Procedural Posture
- Stay Application / Ruling on Chamber Summons for Stay of Execution
- Outcome
- application struck out and dismissed with costs to the decree holder
- Judges
- DA Onyancha
- Legal Topics
- Stay of Execution, Res Judicata, Compromise of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Boniface K Kamau
Plaintiff
Justus Mathenge Nduhiu
Defendant
Procedural Posture
Stay Application / Ruling on Chamber Summons for Stay of Execution
Legal Issues
- 1 Whether the application for stay of execution is competent given the existing stay order.
- 2 Whether the suit has been compromised by a lawful agreement between the parties.
Ratio Decidendi
The court found that the application for stay of execution was incompetent because a stay order granted by Osiemo, J on 15th June, 2006, was still in force and had not been discharged. Therefore, the present application was res judicata. Additionally, the court held that the applicant's attempt to introduce new evidence of a purported agreement of sale was improper, as the suit had already been fully determined and such evidence could only be considered in a new suit. The court concluded that the applicant was attempting to confuse the legal situation by introducing new matters into a finalized case, which is not permissible under civil procedure rules.
Court Disposition
application struck out and dismissed with costs to the decree holder
Orders
- The applicant/judgment debtor's application for stay is struck out and dismissed with costs to the decree holder.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 930 of 1985
BONIFACE K KAMAU .............................................. PLAINTIFF
VERSUS
JUSTUS MATHENGE NDUHIU. .............................. DEFENDANT
R U L I N G
The application before the court is the Chamber Summons dated 16th July, 2008. It seeks the relief: -
“That the Honourable court do grant a stay of execution of the judgment entered against the applicant/defendant and all consequential orders and/decree, pending the hearing and final determination of the prayer that the suit herein has been otherwise compromised by lawful agreement between the parties herein.”
I have carefully studied the supporting documents and the record of this file. As the applicant himself depones in his supporting affidavit sworn by him on 16TH July, 2008, this court by an order made by Osiemo, J on 15th June, 2006, stayed execution of his judgment and decree delivered on 24th October, 2005 until the hearing and final determination of an appeal filed by the applicant. Perusal of the record does not show that the said stay order has ever been discharged. That means that the stay is still in place.
In the above circumstances this application for a similar stay cannot be anything else but incompetent for being res judicata.
On the other hand, even were this application to be valid, the applicant/judgment debtor is trying to drag into the case a new cause of action. The judgment debtor is trying to argue that the decree in favour of the Decree holder/Respondent in this application, should be considered compromised. In my view that cannot be so. That is because the suit subject to the result of the purported appeal, is a finalized or fully determined suit which has nothing to do with new evidence of a purported agreement of sale of the suit property. Such new evidence was not introduced during the hearing of the present suit. It can only therefore be brought into play on a possible new suit which presently does not exist. In my view and finding, the applicant/judgment debtor is deliberately trying to confuse the legal situation by introducing new evidence into an already determined suit. He cannot be allowed to do so.
The court is from the record aware that the decree-holder has filed an application dated 25th February, 2008 to set aside or discharge Osiemo, J’s stay orders. In my view, the application should be heard on merit on the date to be fixed by the parties or the court.
In the meantime, the Applicant/Judgment debtor’s application for stay, is hereby struck out and dismissed with costs to the decree holder. Orders accordingly.
Dated and delivered at Nairobi this 25th day of November, 2009.
.................................
D A ONYANCHA
JUDGE