[2024] KEHC 15960 (KLR)

Source-derived case information.

Citation: [2024] KEHC 15960 (KLR)
Parties: Appellant: The Co-operative Bank of Kenya Limited; Respondent: Owino Kojo alias Victor Brian Owino alias Brian Owino Kojo; Respondent: Khetia Drapers Limited; Interested Party: Jenks Auctioneers
Court: High Court
Court Station: High Court at Bungoma
Jurisdiction: Kenya
Case Number: Civil Appeal E026 of 2022
Procedural Posture: Civil Appeal / Ruling on Preliminary Objection to Application for Stay of Execution
Outcome: preliminary objection dismissed with costs to the applicant
Judges: REA Ougo
Legal Topics: Stay of Execution, Preliminary Objection, Jurisdiction of Court, Notice of Appeal, Abuse of Process
Source Language: en

Civil Procedure Stay of Execution Preliminary Objection Jurisdiction of Court Notice of Appeal Abuse of Process

Source-derived case record

Summary, issues, holding and outcome

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Downloadable case file Legal principles 2 Authorities cited 4 Party arguments 2

Parties

The Co-operative Bank of Kenya Limited

Appellant

Owino Kojo alias Victor Brian Owino alias Brian Owino Kojo

Respondent

Khetia Drapers Limited

Respondent

Jenks Auctioneers

Interested Party

Procedural Posture

Civil Appeal / Ruling on Preliminary Objection to Application for Stay of Execution

Legal Issues

1 Whether the court has jurisdiction to entertain an application for stay of execution where a notice of appeal has been filed but not a substantive appeal.
2 Whether the application for stay of execution amounts to an abuse of court process in the absence of a filed appeal.
3 Whether the preliminary objection raised by the 1st respondent and interested party has merit.

Ratio Decidendi

The court found that the applicant had indeed filed a notice of appeal on 23rd October 2024, contrary to the assertion by the 1st respondent and interested party. The court held that, in line with the decision in Morris Ngundo vs Joan Nyaki & another [2015] and Rule 2 of the Court of Appeal Rules, the filing of a notice of appeal is sufficient to constitute an intended appeal for the purposes of seeking a stay of execution. Therefore, the preliminary objection, which was premised on the alleged absence of an appeal or notice of appeal, was without merit. The court dismissed the preliminary objection with costs to the applicant, holding that the application for stay of execution was...

Court Disposition

preliminary objection dismissed with costs to the applicant

Orders

The preliminary objection dated 29th October 2024 is dismissed with costs to the applicant.
The application for stay of execution remains for determination on its merits.

Full Case Text

Judgment text and source record

27 paragraphs

Co-operative Bank of Kenya Limited v Kojo alias Owino & another; Jenks Auctioneers (Interested Party) (Civil Appeal E026 of 2022) [2024] KEHC 15960 (KLR) (11 November 2024) (Ruling)

Neutral citation: [2024] KEHC 15960 (KLR)

Republic of Kenya

In the High Court at Bungoma

Civil Appeal E026 of 2022

REA Ougo, J

November 11, 2024

Between

The Co-operative Bank of Kenya Limited

Appellant

and

Owino Kojo alias Victor Brian Owino alias Brian Owino Kojo

1st Respondent

Khetia Drapers Limited

2nd Respondent

and

Jenks Auctioneers

Interested Party

Ruling

1. On the 30th of September 2024, judgment was entered against the appellant/applicant ( hereinafter referred to as the applicant). The applicant was granted a stay of execution from 30. 9.2024 for 30 days. On the 25. 10. 2024 the applicant filed an application seeking various orders. The application is brought under sections 1A, 1B, 3A of the Civil Procedure Act and Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules and all other enabling provisions of the law.

2. The applicant is seeking a stay of execution of the Judgment delivered on the 30th of September 2024 pending the hearing and determination of the Application dated 24th October 2024 filed in Kisumu COACAPPL/E154/ 2024 The Cooperative Bank of Kenya Limited -vs- Owino Kojo alias Victor Brian Owino alias Brian Owino Kojo , Khetia Drapers Limited and Jenks Auctioneers and pending the hearing and determination of the intended Appeal.

3. The application is supported by the applicant’s supporting affidavit sworn by the applicant’s legal officer. The application was opposed. The 1st Respondent filed a replying affidavit and the applicant responded to the said affidavit by its further affidavit dated 5th November 2024.

4. In addition, the 1st Respondent filed a Notice of Preliminary Objection dated 29th October 2024 in opposition to the applicant’s application dated 25. 10. 2024. In the said Preliminary Objection the 1st Respondent avers that this court lacks the jurisdiction to entertain the application dated 25. 10. 2024 since no appeal has been filed against the judgment as required under Order 42 Rule 6 on which the application is premised and that the application amounts to an abuse of the Court process and ought to struck out in limine in accordance with the provisions of Order 2 Rule 15 ( 1) (d) of the Civil Procedure Rules. Through the Preliminary Objection , the 1st Respondent and the Interested Party seek that the Notice of Motion application dated 25. 10. 2024 be dismissed and/or struck out with costs to the 1st Respondent and the Interested Party.

5. The preliminary objection was opposed by the applicant and it was canvassed by way of oral submissions.

6. I have considered the rival arguments and the authorities relied on. The preliminary objection is a point of law that the application for a stay of execution cannot be considered for reasons that no appeal has been lodged against the judgment as required under Order 42 Rule 6.

7. I have perused the court file. The applicant was granted a stay of execution after the delivery of judgment on the 30th of September 2024. On 22. 10. 2024 the applicant filed a Notice of Change of Advocates dated 22. 10. 2024, and on 23. 10. 2024 the applicant filed a Notice of Appeal. It is therefore not correct that there is no Notice of Appeal filed by the applicant. Therefore, The cases the respondent relied on are not applicable in this matter. I find the case relied on by the applicant of Morris Ngundo vs Joan Nyaki & another [2015] more applicable, the court held in the said case that once a Notice of Appeal is filed it’s as good as an appeal having been filed. Rule 2 of the Court of Appeal Rules defines an appeal to include an intended appeal. I therefore find no merit in the preliminary objection and it is dismissed with costs.

DATED, SIGNED, AND DELIVERED AT BUNGOMA ON THE 11TH DAY OF NOVEMBER 2024. R.E.OUGOJUDGEIn the presence of:Miss Aluvale For the Appellant/ ApplicantMr. Kojo -For the 1st Respondent & Interested Party2nd Respondent - AbsentKizito - C/A

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