[2020] KEHC 2486 (KLR)
The court found that the appellant had acted in breach of the court's order by filing a bank guarantee without first obtaining leave to substitute the form of security. The trial court's refusal to accept the bank guarantee was justified, as compliance with court orders is mandatory and any variation requires...
Source-derived case information.
- Citation
- [2020] KEHC 2486 (KLR)
- Parties
- Appellant: Charles Wesonga Mbingi; Respondent: Bernard Odhiambo Omusi
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 77 of 2019
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed with costs to the 1st respondent
- Judges
- TW Cherere
- Legal Topics
- Stay of Execution, Compliance With Court Orders, Substitution of Security, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Wesonga Mbingi
Appellant
Bernard Odhiambo Omusi
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the appellant was entitled to substitute a court-ordered cash deposit with a bank guarantee without leave of court.
- 2 Whether the trial court erred in rejecting the bank guarantee filed in breach of its order.
Ratio Decidendi
The court found that the appellant had acted in breach of the court's order by filing a bank guarantee without first obtaining leave to substitute the form of security. The trial court's refusal to accept the bank guarantee was justified, as compliance with court orders is mandatory and any variation requires express permission from the court. The appeal was therefore dismissed, upholding the trial court's decision.
Court Disposition
appeal dismissed with costs to the 1st respondent
Orders
- The appeal is disallowed with costs to the 1st respondent.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
(CORAM: CHERERE-J)
CIVIL CASE NO. 77 OF 2019
BETWEEN
CHARLES WESONGA MBINGI..................................................................APPELLANT
AND
BERNARD ODHIAMBO OMUSI......................................................1ST RESPONDENT
(Being an Appeal from the Ruling and Order in Kisumu CMCC No. 86 of 2016
by Hon. J.Ngarngar (CM) on 19thJune, 2019)
JUDGMENT
1. On 27. 10. 18, the court fixed Kisumu CMCC No. 86 of 2016 for granted a stay of execution on condition that the principal judgment sum of Kshs. 1,200,000/- be deposited in an interest earning account in the names of both advocates.
2. Contrary to the court order, the Appellant on 18. 03. 19 deposited a bank guarantee issued by National Bank for Kshs. 1,300,000/-.
3. Thereafter, the Appellant by an application dated and filed on26. 03. 19 sought the leave of court to file the said bank guarantee.
4. As at the time of seeking leave, the Appellant had long filed the bankguarantee without leave of court and in total breach of the court’s order dated 27. 10. 18.
5. Consequently, I find that the trial court in its ruling dated 19. 06. 2019 rightly rejected the substitution of its order with a bank guarantee that was filed without an express order or leave to file.
6. Consequently, the appeal is disallowed with costs to the 1st Respondent.
DATED AT KISUMU THIS 14thDAY OF October ,2020
T. W. CHERERE
JUDGE
Court assistant - Ms. Amondi
For Appellant- Mr. Mirembe for Ashioya & Co. Advocates
For 1st Respondent - Mr. Ochieng for P.Ochieng Ochieng & Co. Advocates For 2nd Respondent - State Law Office