[2018] KEHC 9128 (KLR)
The court found that the 1st defendant had previously been granted a stay of execution and 30 days to settle the decretal sum but failed to comply with that order and provided no explanation for the non-compliance. The current application, seeking a further 90 days to pay, was filed without any payment having been...
Source-derived case information.
- Citation
- [2018] KEHC 9128 (KLR)
- Parties
- Plaintiff: Daniel Kipkemei Kotut; Defendant: Samwel Gichuru; Defendant: Citivillas Limited; Defendant: Zanview Investments Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 677 of 2010
- Procedural Posture
- Civil Suit / Ruling on Application for Stay of Execution and Payment by Instalments
- Outcome
- application dismissed with costs to the decree holder
- Judges
- MM Kasango
- Legal Topics
- Stay of Execution, Payment by Instalments, Enforcement of Judgments
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Kipkemei Kotut
Plaintiff
Samwel Gichuru
Defendant
Citivillas Limited
Defendant
Zanview Investments Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Stay of Execution and Payment by Instalments
Legal Issues
- 1 Whether the 1st defendant is entitled to a further stay of execution of the decree.
- 2 Whether the 1st defendant should be granted 90 days to settle the decretal sum by instalments despite previous non-compliance with court orders.
Ratio Decidendi
The court found that the 1st defendant had previously been granted a stay of execution and 30 days to settle the decretal sum but failed to comply with that order and provided no explanation for the non-compliance. The current application, seeking a further 90 days to pay, was filed without any payment having been made by the time of hearing. The court determined that the application was a tactic to delay execution and that the 1st defendant had not demonstrated respect for court orders or good faith. Consequently, the court exercised its discretion to dismiss the application, emphasizing that judicial discretion will not be exercised in favour of a party who disregards court orders and...
Court Disposition
application dismissed with costs to the decree holder
Orders
- The Notice of Motion dated 20th April 2018 is dismissed with costs to the decree holder.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND ADMIRALTY DIVISION
CIVIL SUIT NO. 677 OF 2010
DANIEL KIPKEMEI KOTUT….................................................... PLAINTIFF
VERSUS
SAMWEL GICHURU............................................................1ST DEFENDANT
CITIVILLAS LIMITED…….……………...........................2ND DEFENDANT
ZANVIEW INVESTMENTS LIMITED............................3RD DEFENDANT
RULING
1. In this matter, there is a judgment pending execution for Ksh. 6,479,744. 94 as at March 2018. That judgment is against Samuel Gicheru , the 1st defendant.
2. The 1st defendant has made previous application for stay of execution seeking an order that he be allowed to settle the decretal sum by instalments.
3. This court by order of 27th July 2017, ordered as follows:
“(1). That the further execution be and is hereby put on hold for the next 30 days during which the decretal amount must be paid in full. (2). The judgment debtor (1st defendant) will pay costs of the Court Broker and the respondent’s costs of the application.”
4. The application under consideration by the 1st defendant in this Ruling, is dated 20th April, 2018. The 1st defendant seeks stay of execution of the decree and he seeks he be granted 90 days to settle the decretal sum.
5. The application was opposed by Daniel Kipkemei Kotut (the plaintiff). The main ground of opposition is that the 1st defendant’s application offends previous orders of this court.
6. There is no doubt that the 1st defendant gives scant respect to court orders. He was granted stay of execution in July 2015 and was granted 30 days to settle the decretal amount. He did not obey that order and to-date he has given no reason for his failure to obey that order.
7. His present application was filed on 20th April 2018. By that application he sought 90 days to pay the decretal sum. By the date that application was argued before Court, that is 8th May 2018, the 1st defendant had not began to pay the decree holder. It is therefore clear that his application is no more than an attempt to delay execution of the decree.
8. For the above reasons, the Notice of Motion dated 20th April 2018, is dismissed with costs to the decree holder.
DATED, SIGNED and DELIVERED at NAIROBI this22ndday of May,2018.
MARY N. KASANGO
JUDGE
Ruling read in open court in the presence of
Court Assistant.................................Sophie
…………………………………………………for the Plaintiff
………………………………………………for the 1st Defendant
………………………………………………for the 2nd Defendant
………………………………………………for the 3rd Defendant