[2013] KEHC 2583 (KLR)
The court found that since both the plaint and the counterclaim were dismissed by the lower court, there were no operative orders or decrees capable of being stayed. The dispute over ownership of the motor vehicle Reg. No. KUM 220 remains unresolved and can only be determined after the hearing of the substantive...
Source-derived case information.
- Citation
- [2013] KEHC 2583 (KLR)
- Parties
- Appellant: Caesar Njagi Kinguru; Respondent: Josiah Mwangi Marigi
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 170 of 2012
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- BT Jaden
- Legal Topics
- Stay of Execution, Ownership Dispute, Interlocutory Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Caesar Njagi Kinguru
Appellant
Josiah Mwangi Marigi
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether there are orders capable of being stayed following the dismissal of both the plaint and counterclaim in the lower court.
- 2 Whether the court should order the release of motor vehicle Reg. No. KUM 220 to either party pending appeal.
- 3 Whether the application for stay of execution is merited in the circumstances.
Ratio Decidendi
The court found that since both the plaint and the counterclaim were dismissed by the lower court, there were no operative orders or decrees capable of being stayed. The dispute over ownership of the motor vehicle Reg. No. KUM 220 remains unresolved and can only be determined after the hearing of the substantive appeal. As such, the application for stay of execution and for release of the motor vehicle was dismissed, and the parties were directed to fix the appeal for hearing as a priority. Costs of the application were awarded to the respondent.
Court Disposition
application dismissed with costs
Orders
- Application for stay of execution is dismissed with costs.
- Parties to fix the appeal for hearing on a priority basis.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL APPEAL NO. 170 OF 2012
CAESAR NJAGI KINGURU …………………….….… APPELLANT
VERSUS
JOSIAH MWANGI MARIGI ……………………….. RESPONDENT
(Being an appeal from the judgment/decree of the Senior Principal Magistrate’s Court at Kitui of Hon A.G. Kibiru SPM in Senior Principal Magistrate Case No. 66 of 2006 dated 2nd October 2012)
************************************
(Before B. Thuranira Jaden J)
R U L I N G
The application dated 14/12/2012 is brought under Order 51 Rule 1, Order 42 Rule 6 and 32 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act.
The application seeks the following orders:-
“(Spent).
THAT, this Honourable Court be pleased to order a stay of execution of the judgment/decree of the learned trial magistrate, theHon. Mr. A.G. Kibiru SPMdated 2/10/2012 inKitui SPMCC No. 66of2006 because the judgment did not find as ought to be who between the appellant and the Respondent was the owner of motor vehicleReg. No. KUM 220which is what the case was all about yet he appreciated the motor vehicle in many aspects belonged to the Appellant. The judgment before the eyes of the law was no decision at all since it caused more grieve to the Appellant than when he first sought court’s intervention in the matter on 2/3/2006 seven years down the line despite there being overwhelming evidence that he is actually the owner.
THAT this Honourable Court be pleased to order release of motor vehicleReg. No. KUM 220 to the Appellant as the owner and/or order its transfer from the custody ofKitui Police StationtoMachakoseven if at the Appellant’s costs.
THAT the costs of this application be provided for.”
The application is supported by the affidavit of the applicant, Caesar Njagi Kinguru sworn on 14/12/12.
According to the said affidavit, motor vehicle Reg. No. KUM 220 was placed under the custody of Kitui Police Station pending the hearing and determination of the suit in Kitui PMCC No. 66 of 2006. The Applicant averred that the record of appeal has been availed and the court has the discretion to issue the orders sought.
In opposition to the application, the Respondent swore a replying affidavit on 5/2/2013. The Respondent is opposed to the release of motor vehicle in question. The Respondent also claims ownership of the motor vehicle and wants the motor vehicles released to him.
The judgment of the lower court dismissed both the Plaintiff’s suit and the Defendant’s counterclaim. The Applicant was the Plaintiff in the lower court and had sought declaratory orders inter alia that the motor vehicle in question belonged to him. In his counterclaim, the Respondent who was the 1st defendant counterclaimed, inter alia that the Applicant be ordered to transfer the motor vehicle to him or in the alternative that the Applicant do refund the Kshs.320,000/= purchase price.
With a dismissal of the plaint and the counterclaim the dispute was left unresolved. There are therefore no orders to be stayed by this court. The question of ownership and therefore the release of the motor vehicle can only be determined after hearing of the appeal. The parties should therefore move to fix the appeal for hearing on a priority basis. Application dismissed with costs.
………………………………………
B. THURANIRA JADEN
JUDGE
Dated and delivered at Machakos this 11thday of July2013.
………………………………………
B. THURANIRA JADEN
JUDGE