[2018] KEHC 4461 (KLR)
The court found that the applicant had demonstrated a serious dispute regarding the computation of interest and the total amount due under the decree, particularly given the significant increase in the amount claimed in the warrants of attachment within a short period. To prevent possible injustice and to preserve...
Source-derived case information.
- Citation
- [2018] KEHC 4461 (KLR)
- Parties
- Plaintiff: Dorcus Adhiambo Mbudi; Defendant: The Archdiocese of Kisumu Catholic Church; Defendant: Erastus Khandira
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Commercial Civil Case 75 of 2018
- Procedural Posture
- Commercial Case / Ruling on Application for Stay of Execution Pending Interpartes Hearing
- Outcome
- temporary stay of execution granted pending interpartes hearing
- Judges
- RE Aburili
- Legal Topics
- Stay of Execution, Warrants of Attachment, Judgment Debtor Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dorcus Adhiambo Mbudi
Plaintiff
The Archdiocese of Kisumu Catholic Church
Defendant
Erastus Khandira
Defendant
Procedural Posture
Commercial Case / Ruling on Application for Stay of Execution Pending Interpartes Hearing
Legal Issues
- 1 Whether the applicant is entitled to a temporary stay of execution of the judgment and/or decree pending interpartes hearing of the application.
- 2 Whether the warrants of attachment and sale issued for the judgment-debtor's movable property should be temporarily recalled and stayed.
- 3 Whether there is a genuine dispute regarding the computation of interest and the amount due under the decree.
Ratio Decidendi
The court found that the applicant had demonstrated a serious dispute regarding the computation of interest and the total amount due under the decree, particularly given the significant increase in the amount claimed in the warrants of attachment within a short period. To prevent possible injustice and to preserve the subject matter of the dispute, the court granted a temporary stay of execution of the judgment and/or decree and recalled the warrants of attachment pending the interpartes hearing of the application. The court emphasized the need to allow both parties to be heard on the substantive issues before any further execution steps are taken.
Court Disposition
temporary stay of execution granted pending interpartes hearing
Orders
- Temporary stay of execution of the judgment and/or decree dated 14.2.2018 pending hearing and determination of the application dated 30th August, 2018 interpartes.
- Warrants of attachment and sale issued to Joni Consult Auctioneers for the attachment and sale or taking of possession of the applicant's movable properties on 23.8.2018 are temporarily recalled and stayed pending hearing and determination of the application interpartes.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
COMMERCIAL CASE NO. 75 OF 2018
(CORAM: R. E. ABURILI – J)
DORCUS ADHIAMBO MBUDI.....................PLAINTIFF/RESPONDENT
VERSUS
THE ARCHDIOCESE OF KISUMU
CATHOLIC CHURCH..........................1ST DEFENDANT/RESPONDENT
ERASTUS KHANDIRA........................2ND DEFENDANT/RESPONDENT
(KISUMU FILE NO. 75 OF 2018 FORWARDED FOR HEARING BY D.R. KISUMU BEFORE VACATION DUTY COURT – SIAYA (Formerly Environment and Land Case No. 155/2012))
RULING:
I have considered the application by the Defendant/Judgment-Debtor as certified urgent.
I note that the Warrants of Attachment of movable property belonging to the Judgment-Debtor issued in August, 2018 claims for KShs.12,097,813 yet in June, 2018, the Warrants were for KShs.6,422,308. The principal sum as per the decree was KShs.2. 2. There is a serious dispute as to the interest due and whether the principal sum of 2. 2 million which has been settled has attracted interest totaling to over 10 million.
That being the case, I am satisfied that the Applicant herein has made out a case for temporary stay orders pending interpartes hearing. In the premises, I make the following orders:
(1) There shall be temporary stay of Execution of the Judgment and/or decree dated 14. 2.2018 pending the hearing and determination of the application dated 30th August, 2018 interpartes.
(2) The Warrants of attachment and sale issued to Joni Consult Auctioneers for the attachment and sale or taking of possession of the Applicant/Defendant/Judgment-Debtor’s movable properties on 23. 8.2018 are hereby temporarily recalled and stayed pending hearing and determination of the application herein interpartes.
(3) The Applicant to serve the Respondent/Plaintiff/Decree-Holders with the application and order herein for interpartes hearing on 13th September, 2018 before the Duty Judge, Kisumu Court.
(4) Cost shall be in the cause
Delivered, Dated and Signed this 28th day of August, 2018.
R. E. ABURILI
JUDGE