[2017] KEHC 2853 (KLR)
The court found that the application for a temporary stay of sale was unmerited because the suit had already been dismissed for want of prosecution, rendering the court functus officio. The applicant had previously filed a similar application, which had been determined, making the present application res judicata....
Source-derived case information.
- Citation
- [2017] KEHC 2853 (KLR)
- Parties
- Plaintiff: Erick Kimingichi Wapangana t/a Magharibi Machinaries; Defendant: Equity Bank Limited; Defendant: Antique Auctioneers Agencies
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 91 of 2011
- Procedural Posture
- Stay Application / Ruling on Application for Temporary Stay of Sale Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- SN Mukunya
- Legal Topics
- Stay of Execution, Statutory Power of Sale, Injunctive Relief, Dismissal for Want of Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Erick Kimingichi Wapangana t/a Magharibi Machinaries
Plaintiff
Equity Bank Limited
Defendant
Antique Auctioneers Agencies
Defendant
Procedural Posture
Stay Application / Ruling on Application for Temporary Stay of Sale Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a temporary stay of sale of the suit parcels pending appeal.
- 2 Whether the application is res judicata due to a previous similar application having been determined.
- 3 Whether the applicant has demonstrated sufficient cause, including substantial loss and provision of security, to warrant the stay.
Ratio Decidendi
The court found that the application for a temporary stay of sale was unmerited because the suit had already been dismissed for want of prosecution, rendering the court functus officio. The applicant had previously filed a similar application, which had been determined, making the present application res judicata. Furthermore, the applicant failed to demonstrate any substantial loss that would be suffered if the stay was not granted and did not provide or offer any security for costs. The court emphasized that the statutory power of sale had crystallized due to the applicant's default in repaying the borrowed sum, and there was no legal basis to restrain the 1st defendant from exercising...
Court Disposition
application dismissed with costs
Orders
- The application for temporary stay of sale is dismissed.
- Costs awarded to the defendants/respondents.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA.
IN HIGH COURT OF KENYA AT BUNGOMA.
CIVIL SUIT NO. 91 OF 2011.
ERICK KIMINGICHI WAPANGANA T/A MAGHARIBI MACHINARIES.....PLAINTIFF
VERSUS.
EQUITY BANK LIMITED…………...............................................…1ST DEFENDANT
ANTIQUE AUCTIONEERS AGENCIES……...............................…2ND DEFENDANT
RULING.
[1] The applicant filed a notice of motion under Order 42 of the Civil Procedure Rules and under Sections 3 and 3A of the Civil Procedure Act. He prays for a temporary stay of sale of suit parcels;
E. Bukusu/S. Kanduyi/13584
E. Bukusu/S. Nalondo/618
E. Bukusu/S. Nalondo/2741
Pending hearing inter partes of this application and pending the hearing of Civil Appeal No. 107 of 2016.
[2] The respondent filed grounds of opposition and averred that the plaintiffs had not shown sufficient and substantial loss they will suffer if the orders are not granted. They argued that once property is used to secure financial accommodation, the same is ipso facto becomes commodity for sale by Public Auction in case of default. Further they argued that the applicants have not offered any security for costs nor deposited any security in court. They further argued that the application is resjudicatta since a similar application have been determined fully by this court. They argue that this application is meant to deny the defendants from exercising their statutory power of sale that has crystalized. That there is no basis for granting a stay as the courts cannot rewrite contracts on behalf of the parties.
[3] This suit was dismissed for want of prosecution on 26/10/2015. A similar application was filed on 28th July 2016 under order 45 rule I(1) and (2) rule 3(a), order 40 1,2,3,4 and 6 and Sec 3A of the Civil Procedure Rules and article 159 of the constitution. They sought injunctive orders that had expired on 11/10/2015 preventing sale E. Bukusu/S. Kanduyi/13584, E. Bukusu/S. Nalondo/618 and E. Bukusu/S. Nalondo/2741 be reinstated pending the hearing of that application. I made a ruling that the injunctive orders ceased to exist, they had been extinguished by operation of law. I also stated that once the suit is dismissed under order 17(2) the court becomes functus official. I also stated that the applicant having borrowed 7. 8 million from the respondent failed to show the efforts he had made to repay the debt. That position persists in this application since I made that ruling on 27/9/2016. Nothing has changed. I find this application unmerited. No suit is pending herein. In my view there is nothing to prevent the 1st respondent from exercising its power of sale.
The application is not merited and the same is dismissed with costs.
Ruling read in Open Court in the presence of Counsels.
Dated at Bungoma this 4thday of October, 2017.
S. MUKUNYA
JUDGE
In the presence of:
Court Assistants: Chemutai/Joy
Miss Wanjala for Makokha for the defendant/respondent
Mr. Murunga for Mr. Ngira for the applicants