[1998] KEHC 121 (KLR)
The court found that the reasons advanced by the defendant's counsel for non-attendance at the hearing on 15th May, 1998 were plausible and credible. In the interest of justice, the court exercised its discretion to grant a stay of execution of the order made in the absence of the defendant's counsel. The court...
Source-derived case information.
- Citation
- [1998] KEHC 121 (KLR)
- Parties
- Plaintiff: Consumer Hire Purchase Ltd; Defendant: Elizabeth Waithira Kamuyu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 4340 of 1994
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution
- Outcome
- Application for stay of execution granted; application to be heard on merits; costs to defendant's counsel.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Execution, Ex Parte Orders, Non Attendance, Costs of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Consumer Hire Purchase Ltd
Plaintiff
Elizabeth Waithira Kamuyu
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution
Legal Issues
- 1 Whether the defendant has provided sufficient reasons for non-attendance at the hearing on 15th May, 1998.
- 2 Whether a stay of execution of the order made on 15th May, 1998 should be granted.
Ratio Decidendi
The court found that the reasons advanced by the defendant's counsel for non-attendance at the hearing on 15th May, 1998 were plausible and credible. In the interest of justice, the court exercised its discretion to grant a stay of execution of the order made in the absence of the defendant's counsel. The court further directed that the application be set down for hearing on its merits, with the defendant's counsel to bear the costs of the present application. The decision underscores the principle that procedural fairness requires parties to be given an opportunity to be heard, especially where non-attendance is satisfactorily explained.
Court Disposition
Application for stay of execution granted; application to be heard on merits; costs to defendant's counsel.
Orders
- Stay of execution of the order made on 15th May, 1998 is granted.
- The application shall be set down for hearing on merit.
Full Case Text
Judgment text and source record
9 paragraphs
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 4340 OF 1994
CONSUMER HIRE PURCHASE LTD......................................PLAINTIFF VERSUS ELIZABETH WAITHIRA KAMUYU........................................DEFENDANT
RULING
This is the defendant’s application for a stay of execution of the order made herein on 15th May, 1998. When that order was made the learned counsel for the defendant did not appear. I have now read the affidavit of the learned counsel for the defendant and believe that the reasons given for non attendance are plausible.
Accordingly I grant the orders sought in the Chamber Summons dated 7th July, 1998. The application shall not be set down for hearing on merit and the counsel for the defendant shall pay the costs of this application. Orders accordingly.
Dated and delivered at Nairobi this 31st day of July, 1998
A. MBOGHOLI MSAGHA JUDGE
Morara for plaintiff/respondent Tiffo for Abnodha for defendant/applicant