[2011] KEHC 3481 (KLR)
The court found that, notwithstanding the expiration of the seven-day period for deposit of the decretal sum as a condition for stay of execution, it retained jurisdiction under section 95 of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules to enlarge the time for compliance. The court noted...
Source-derived case information.
- Citation
- [2011] KEHC 3481 (KLR)
- Parties
- Applicant: Eldoret Steel Mills Limited; Respondent: Daniel Wafula Okoth
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 140 of 2010
- Procedural Posture
- Civil Appeal / Ruling on Application for Extension of Time to Deposit Decretal Sum as Condition for Stay of Execution
- Outcome
- Application for extension of time allowed; applicant to deposit decretal sum within seven days, failing which the application stands dismissed; applicant to bear costs of the application.
- Legal Topics
- Stay of Execution, Extension of Time, Decretal Sum Deposit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eldoret Steel Mills Limited
Applicant
Daniel Wafula Okoth
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Extension of Time to Deposit Decretal Sum as Condition for Stay of Execution
Legal Issues
- 1 Whether the court has jurisdiction to extend time for compliance with a condition for stay of execution after the lapse of the original period.
- 2 Whether the applicant has provided sufficient grounds for extension of time to deposit the decretal sum.
Ratio Decidendi
The court found that, notwithstanding the expiration of the seven-day period for deposit of the decretal sum as a condition for stay of execution, it retained jurisdiction under section 95 of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules to enlarge the time for compliance. The court noted that the respondent had not provided evidence of prejudice beyond what could be compensated by costs. The justice of the case required that the applicant be granted a further opportunity to comply with the order, and the court exercised its discretion to allow the extension sought, subject to compliance within a renewed seven-day period.
Court Disposition
Application for extension of time allowed; applicant to deposit decretal sum within seven days, failing which the application stands dismissed; applicant to bear costs of the application.
Orders
- The applicant shall deposit the decretal sum in an interest-earning bank account in the joint names of the parties' advocates within seven days from the date of this ruling.
- Failure to comply within seven days shall result in the application standing dismissed.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH CORT OF KENYA
AT ELDORET
[CORAM: AZANGALALA, J]
CIVIL APPEAL NO. 140 OF 2010
B E T W E E N
ELDORET STEELL MILLS LIMITED.........................................................................................APPLICANT
A N D
DANIEL WAFULA OKOTH ....................................................................................................RESPONDENT
RULING
On 19th January 2011, I allowed the applicant’s application for stay of execution on terms that it deposits the entire decretal amount into an interest earning bank account in the joint names of the parties’ advocates within seven (7) days of the date of the order failing which the applicant’s application would stand dismissed. The applicant failed to do so and has now come back seeking extension of the time to make the deposit. The application is brought mainly under section 95 of the Civil Procedure Act and Order 50 Rule 6 of the civil Procedure Rules.
The main reason for the application is that the applicant has to settle many other decrees in various suits filed before Eldoret Chief Magistrate’s Court. The application is supported by an affidavit sworn by one Narinder Singh Lochab in which the above ground is elaborated.
The application is opposed by way of replying affidavit sworn by counsel for the respondent. The thrust of the opposition is that the extension cannot be ordered given that the period appointed in the order of stay has since lapsed and that no basis has been laid for the grant of the same.
When the application came up before me for hearing on 1st March 2011, counsel adopted their submissions in HCCA NO. 139 OF 2010.
I have considered the application, the affidavits filed and counsels’ submissions. Having done so, I take the following view of the matter. There is no dispute that the applicant has not complied with the condition for stay of execution within the time appointed in the order or at all. Is the applicant in those premises excluded from moving the court as it has done? I do not think so given the express provisions of section 95 of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules. Under the provisions, notwithstanding the expiration of the seven (7) days granted in the order of stay, the Court still has power to enlarge the time within which the deposit was to be made. The principal concern of the Court is the justice of the case.
The respondent in this case did not file any affidavit to challenge the factual position given by the applicant. There is therefore no evidence that he may be prejudiced by the order sought beyond what is compensatable in costs. As Lord Denning stated in Republic –vrs- Bhomsbury and Marylebone County Court: exparte Villerwest Ltd [1976] 1 All ER 897 a 900, [1976] 1 WLR 362 at 366,
“ If a condition is not fulfilled within a specified time, even though the action may be said to cease to exist the court always has power to bring it to life again by extending the time.”
In the premises, I am inclined to allow the application. The applicant should now comply with the order on deposit within seven (7) days from the date hereof failing which the application shall stand dismissed.
The applicant shall bear the costs of this application.
Orders accordingly.
DATED AND DELIVERED AT ELDORET THIS 15TH DAY OF MARCH 2011
F. AZANGALALA
JUDGE
Read in the presence of:
Mr. Nyairo for the applicant and
Mr. Yego for the respondent.
F. AZANGALALA
JUDGE