[2004] KEHC 1540 (KLR)
The High Court held that since the decree in question was issued by the Principal Magistrate's Court at Kerugoya and there was no further appeal pending, the application for stay of execution and for leave to pay by instalments should have been made to the court that issued the decree. The High Court therefore...
Source-derived case information.
- Citation
- [2004] KEHC 1540 (KLR)
- Parties
- Appellant: Eunice Wanjira Josiah; Respondent: Jonathan Njogu Mathew
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 37 of 1999
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution and Leave to Pay by Instalments
- Outcome
- Application struck out as incompetent with costs to the respondent.
- Judges
- ARM Visram
- Legal Topics
- Stay of Execution, Instalment Payment of Debt, Jurisdiction of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eunice Wanjira Josiah
Appellant
Jonathan Njogu Mathew
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution and Leave to Pay by Instalments
Legal Issues
- 1 Whether the High Court has jurisdiction to entertain an application for stay of execution after dismissal of an appeal when the decree was issued by a lower court.
- 2 Whether leave to pay the decretal amount by monthly instalments can be granted by the High Court in these circumstances.
Ratio Decidendi
The High Court held that since the decree in question was issued by the Principal Magistrate's Court at Kerugoya and there was no further appeal pending, the application for stay of execution and for leave to pay by instalments should have been made to the court that issued the decree. The High Court therefore lacked jurisdiction to entertain the application, rendering it incompetent. As a result, the application was struck out with costs to the respondent.
Court Disposition
Application struck out as incompetent with costs to the respondent.
Orders
- The application is struck out as incompetently before the High Court.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT IOF KENYA
AT NAIROBI
CIVIL APPEAL 37 OF 1999
EUNICE WANJIRA JOSIAH ……………………………. APPELLANT
VERSUS
JONATHAN NJOGU MATHEW ………………..…….. RESPONDENT
RULING
This is an application under Order 21 Rule 22 and Order 20 Rule 11 of the Civil Procedure Rules for “stay of execution”, and for leave to pay the decretal amount by monthly instalments. The decree sought to be stayed was issued in Kerugoya PMCC 220 of 1997. That decree was the subject of appeal to the Court, and was dismissed by my brother Ransley, J on January 28, 2004.
There being no further appeal pending in this matter, the application under Order 21 Rule 22 of the Civil Procedure Rule ought to be made to the Court which issued the decree, that is the PMCC, Kerugoya, which is also the Court where execution is envisaged.
Accordingly, this application being incompetently before this Court, is struck out with costs to the Respondent.
Dated and delivered at Nairobi this 24th day of May, 2004.
ALNASHIR VISRAM
JUDGE