[2017] KEHC 7060 (KLR)
The court found that the applicant had demonstrated sufficient apprehension of irreparable loss if execution was allowed to proceed, particularly since the applicant had already paid money to the respondent. Given that the appeal was to be filed within seven days by consent, it was appropriate to preserve the...
Source-derived case information.
- Citation
- [2017] KEHC 7060 (KLR)
- Parties
- Applicant: Ephantus Nyaga Ngoroi; Respondent: Ndwiga Stephano
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 161 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time, Stay of Execution, and Inhibition
- Outcome
- application allowed in terms of prayers for stay of execution and inhibition; each party to bear own costs
- Judges
- FN Muchemi
- Legal Topics
- Extension of Time, Stay of Execution, Inhibition Orders, Execution of Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ephantus Nyaga Ngoroi
Applicant
Ndwiga Stephano
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time, Stay of Execution, and Inhibition
Legal Issues
- 1 Whether the applicant should be granted an extension of time to file an appeal against the judgment in Embu CMCC No. 45 of 2007.
- 2 Whether a stay of execution of the judgment should be granted to prevent irreparable loss to the applicant.
- 3 Whether an inhibition should be issued against the title for Kagaari/Kanja/787 to preserve the subject matter pending appeal.
Ratio Decidendi
The court found that the applicant had demonstrated sufficient apprehension of irreparable loss if execution was allowed to proceed, particularly since the applicant had already paid money to the respondent. Given that the appeal was to be filed within seven days by consent, it was appropriate to preserve the subject matter by issuing an inhibition against the property title and staying execution of the judgment. The application was therefore merited and allowed in terms of the prayers for stay and inhibition, with each party bearing their own costs.
Court Disposition
application allowed in terms of prayers for stay of execution and inhibition; each party to bear own costs
Orders
- Stay of execution of the judgment in Embu CMCC No. 45 of 2007 is granted.
- An inhibition is issued against the title for Kagaari/Kanja/787 to preserve the subject matter.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
MISC. CIVIL APPLICATION NO. 161 OF 2016
EPHANTUS NYAGA NGOROI....................................... APPLICANT
VERSUS
NDWIGA STEPHANO...............................................RESPONDENT
R U L I N G
1. This is a ruling on the application dated 19/09/2016 seeking for extension of time to file an appeal against the judgment in Embu CMCC No. 45 of 2007. It also seeks for stay for execution of the judgment and for an inhibition to be issued against the title for Kagaari/Kanja/787. It is supported by the affidavit of Ephantus Nyaga Ngoroi, the applicant.
2. The application was opposed by the respondent in his replying affidavit sworn on 25/10/2016.
3. Both parties agreed to use their affidavits as basis for preparing this ruling as opposed to arguing the application orally or by way of written submissions.
4. Prayer 2 was allowed by the consent of the parties on 3/11/2016. The appeal was to be filed within seven (7) days. The parties now focus on prayers 3 and 4.
5. As for stay of execution, the applicant is apprehensive that the respondent may move to execute for the bill of costs which is likely to result in the applicant suffering irreparable loss. The applicant has already paid his money to the respondent.
6. The appeal may have been filed by now after the consent was recorded by the parties. It is therefore appropriate that the subject matter be preserved by way of an inhibition. The execution of the judgment shall be stayed.
7. I find the application merited and it is hereby allowed in terms of prayers 4 and 5.
8. Each party to meet their own costs of this application.
DATED, DELIVERED AND SIGNED THIS 22ND DAY OF FEBRUARY, 2017.
F. MUCHEMI
JUDGE
In the presence of:-
Mr. Ithiga for Applicant
Respondent present in person