[2017] KEHC 7195 (KLR)
The court found that the defendant had failed to prosecute the application for stay of execution for over five and a half years since its filing, and had not taken any steps to move the matter forward even after the interim stay was vacated two years prior. The court held that reinstating the interim orders would...
Source-derived case information.
- Citation
- [2017] KEHC 7195 (KLR)
- Parties
- Plaintiff: Edward Ngera Mwangi; Plaintiff: Philis Rose Wambui Thuo; Defendant: Veronica Ndinda Kimende
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 635 of 2010
- Procedural Posture
- Civil Case / Ruling on Application to Reinstate Interim Stay Orders
- Outcome
- application dismissed with costs to the plaintiffs
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Interim Orders, Stay of Execution, Dismissal of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edward Ngera Mwangi
Plaintiff
Philis Rose Wambui Thuo
Plaintiff
Veronica Ndinda Kimende
Defendant
Procedural Posture
Civil Case / Ruling on Application to Reinstate Interim Stay Orders
Legal Issues
- 1 Whether the interim stay orders vacated on 5th February, 2015 should be reinstated.
- 2 Whether the defendant's delay in prosecuting the application dated 6th April, 2011 justifies refusal to reinstate the interim orders.
Ratio Decidendi
The court found that the defendant had failed to prosecute the application for stay of execution for over five and a half years since its filing, and had not taken any steps to move the matter forward even after the interim stay was vacated two years prior. The court held that reinstating the interim orders would defeat the ends of justice, as litigation must come to an end and both parties are entitled to certainty regarding their legal positions. The application for reinstatement was therefore dismissed with costs to the plaintiffs.
Court Disposition
application dismissed with costs to the plaintiffs
Orders
- The application dated 9th February, 2015 is dismissed with costs to the plaintiffs.
- Interim orders previously vacated are not reinstated.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 635 OF 2010
EDWARD NGERA MWANGI........1ST PLAINTIFF/RESPODNENT
PHILIS ROSE WAMBUI THUO.............................2ND PLAINTIFF
VERSUS
VERONICA NDINDA KIMENDE................................DEFENDANT
RULING
On 3rd December, 2014 counsel appearing for the parties herein addressed Aburili J. in respect of an application dated 6th April, 2011 filed by the defendant. Counsel for the defendant asked for the hearing date and an interim stay of execution because he told the court there were warrants of arrest issued, I believe, against the defendant.
Aburili J. granted an interim order of stay of execution pending the hearing of the application on 5th February, 2015. On 5th February, 2015 both counsel appeared before the same Judge and after a brief address the matter was adjourned at the instance of the counsel for the defendant. The Judge however declined to grant any stay.
The application before me is dated 9th February, 2015 which sought among other orders that the interim orders that were vacated on 5th February, 2015 be reinstated. The other orders in that application have been spent. The reinstatement of the orders is opposed and grounds of opposition have been filed.
The application upon which the interim orders were first issued in favour of the defendant has never been prosecuted since it was filed on 6th April, 2011. This translates to more than five and half years since. Again, the stay was vacated two years ago yet, notwithstanding the fear of execution, the defendant has not taken any steps to prosecute the application.
It will defeat the ends of justice on both sides if the order sought is reinstated. I say so because litigation must come to an end, and I believe it behoves both parties to address the application dated 6th April, 2011 so that the parties may know where they stand. For those reasons, I decline to reinstate the interim orders and therefore the application dated 9th February, 2015 is dismissed with costs to the plaintiffs.
Dated, signed and delivered at Nairobi this 16th Day of February, 2017
A. MBOGHOLI MSAGHA
JUDGE