[2007] KEHC 1029 (KLR)
The court found that the stay orders were granted without hearing the judgment creditor, thereby violating the principles of natural justice. The applicant holds a valid judgment that has neither been appealed nor set aside, and the continued stay of execution would cause undue hardship and injustice by denying the...
Source-derived case information.
- Citation
- [2007] KEHC 1029 (KLR)
- Parties
- Applicant: Duncan Githinji Njeru; Respondent: Minister of Finance; Respondent: Commissioner of Insurance; Respondent: Statutory Manager United Insurance; Respondent: Hon. Attorney General; Interested Party: Monica Wacuka Ngera
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 88 of 2006
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Stay Orders
- Outcome
- application allowed
- Legal Topics
- Stay of Execution, Setting Aside Orders, Judgment Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Duncan Githinji Njeru
Applicant
Minister of Finance
Respondent
Commissioner of Insurance
Respondent
Statutory Manager United Insurance
Respondent
Hon. Attorney General
Respondent
Monica Wacuka Ngera
Interested Party
Procedural Posture
Civil Case / Ruling on Application to Set Aside Stay Orders
Legal Issues
- 1 Whether the stay orders granted on 23/10/2006 should be set aside for failure to hear the judgment creditor.
- 2 Whether the applicant is entitled to execution of a valid and unappealed judgment.
- 3 Whether the delay in execution constitutes injustice to the applicant.
Ratio Decidendi
The court found that the stay orders were granted without hearing the judgment creditor, thereby violating the principles of natural justice. The applicant holds a valid judgment that has neither been appealed nor set aside, and the continued stay of execution would cause undue hardship and injustice by denying the applicant the fruits of judgment. The issues in the current suit do not concern the applicant, and the respondent is required to satisfy the judgment lawfully entered against him. The insurers are not parties to the original suit, and there is no application to set aside or appeal the judgment. Therefore, the court set aside the ex parte stay orders to the extent of order...
Court Disposition
application allowed
Orders
- The ex parte orders made on 23/10/2006 are set aside to the extent of order number 3.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Civil Case 88 of 2006
DUNCAN GITHINJI NJERU……………………….…...…..…………APPLICANT
VERSUS
1. MINISTER OF FINANCE…………………...……......……1ST RESPONDENT
2. COMMISSIONER OF INSURANCE…………….........….2ND RESPONDENT
3. STATUTORY MANAGER UNITED INSURANCE............3RD RESPONDENT
4. HON. ATTORNEY GENERAL……………….....…….…...4TH RESPONDENT
AND
MONICA WACUKA NGERA………………....................….INTERESTED PARTY
RULING
Before the court is application dated 20/11/2006 which orders to set aside orders made in this court on 23/10/2006 to the effect that execution of orders made in HCC No. 75 of 1998 be stayed.
The grounds are set out in the body of the application and also supporting affidavit sworn by applicant’s advocate Mr. Macharia Muraguri. The main ground is that the stay orders were made before hearing the judgment creditor in suit HCC No. 75 of 1998 who is affected who holds a judgment made in his favour on 2/7/2004. That the Applicant stands to suffer hardship by the delay of execution of his decree which is valid and not appeal from or set aside.
This application is opposed by the exparte applicant who has filed 4 grounds of opposition. I have perused the same. The Respondent does not need protection against the Applicant in HCC No. 75 of 1998. He is required to satisfy judgment lawfully entered against him in favour of the Applicant. The issues raised in this suit do not concern the applicant. It is not sought to set aside judgment or to appeal against the same. It is a matter between the Respondent and his insurers. The judgment is against the Respondent only. His insurers are not party suit HCC. No. 75/98. To delay a party from enjoying the fruits of judgment since 2/7/2004 is doing injustice to him.
I therefore allow the application and grant orders sought. The exparte orders made on 23. 10. 2006 are hereby set aside to the extent of order number 3 thereof.
Costs shall be in the cause.
Dated this 16th January, 2007
J.N. KHAMINWA
JUDGE