[2008] KEHC 381 (KLR)
The court found that the applicant had not made any effort to pay the outstanding debt or offered any security as required under Order 41 Rule 4. The applicant failed to demonstrate what substantial loss would be suffered if the orders were not granted. The court held that the applicant approached the court with...
Source-derived case information.
- Citation
- [2008] KEHC 381 (KLR)
- Parties
- Plaintiff: Ebony Development Company Ltd; Defendant: Standard Chartered Bank Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 19 of 2008
- Procedural Posture
- Civil Case / Ruling on Application for Stay/injunction Pending Appeal
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Stay of Execution, Injunctions, Security for Costs, Guarantees, Appeals Process
- Source Language
- en
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Summary, issues, holding and outcome
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Parties
Ebony Development Company Ltd
Plaintiff
Standard Chartered Bank Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Application for Stay/injunction Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to an order for status quo and stay/injunction pending appeal.
- 2 Whether the applicant has demonstrated substantial loss if the orders are not granted.
- 3 Whether the applicant has offered security as required under Order 41 Rule 4.
Ratio Decidendi
The court found that the applicant had not made any effort to pay the outstanding debt or offered any security as required under Order 41 Rule 4. The applicant failed to demonstrate what substantial loss would be suffered if the orders were not granted. The court held that the applicant approached the court with unclean hands, having made no attempt to settle the indebtedness or comply with the requirements for stay. Consequently, the application lacked merit and was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application dated 09.10.08 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL COURTS) Civil Case 19 of 2008
EBONY DEVELOPMENT COMPANY LTD….....……… PLAINTIFF
VERSUS
STANDARD CHARTERED BANK LTD………..…….DEFENDANT
RULING
Notice of Motion dated 09. 10. 08 seeking orders that status quo be ordered as existing prior to the Ruling of 29. 09. 08 pending interpartes hearing and that Court grant a stay/injunction against the Defendants pending hearing and determination of an appeal against order made on 29. 09. 08 subject to reasonable conditions of security. The application is grounded on the grounds stated.
The application is supported by affidavit of Charles Muthami Kiberenge.
A Notice of Appeal is filed and even a copy of Memorandum of Appeal showing the matters complained of. This application is opposed. Jane Chege has filed a Replying Affidavit and has pointed out that the plaintiff company managed by Charles Muthami Kiberenge guaranteed the indebtedness of the said Managing Director (principal debtor). Since filing of this suit neither the Plaintiff nor the principal debtor has made any payment to reduce the indebtedness. The applicant was proposing to dispose of secured property and promising to pay but no payment has been received yet.
I have perused the application and the affidavit filed by both parties. It is my finding that the applicant approaches a Court of equity with unclean hands. He has not made any effort to offer any payments towards the indebtedness.
The Applicant has not demonstrated what substantial loss he is likely to suffer if orders are not granted. No security is offered as required under Order 41 Rule 4.
I find that this Application has no merit and the same is dismissed with costs to the Respondent.
DATED this 1st day of December 2008.
JOYCE N. KHAMINWA
JUDGE