[2015] KEHC 2357 (KLR)
The court found that the defendant had failed to comply with the conditional order for stay of execution by not depositing the required sum within the stipulated time. The court further held that the defendant's filing of a notice of appeal and a similar application before the Court of Appeal, instead of complying...
Source-derived case information.
- Citation
- [2015] KEHC 2357 (KLR)
- Parties
- Plaintiff: Dr. Faith Muli; Defendant: Dr. Moses Njue Gachoka carrying on business in the name of Kings Medical College
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 634 of 2007
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution and Extension of Time Pending Appeal
- Outcome
- application dismissed with costs to the plaintiff
- Judges
- JK Sergon
- Legal Topics
- Stay of Execution, Extension of Time, Defamation Damages, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dr. Faith Muli
Plaintiff
Dr. Moses Njue Gachoka carrying on business in the name of Kings Medical College
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution and Extension of Time Pending Appeal
Legal Issues
- 1 Whether the defendant is entitled to a stay of execution of the judgment pending appeal.
- 2 Whether the defendant should be granted an extension of time to comply with the court's order to deposit security for stay.
- 3 Whether filing a notice of appeal against a refusal to grant stay constitutes an abuse of court process.
Ratio Decidendi
The court found that the defendant had failed to comply with the conditional order for stay of execution by not depositing the required sum within the stipulated time. The court further held that the defendant's filing of a notice of appeal and a similar application before the Court of Appeal, instead of complying with the order or seeking timely extension, amounted to an abuse of the court process. The request for extension of time was also found to be overtaken by events, as the period sought had already lapsed. Consequently, the court dismissed the defendant's application in its entirety for lack of merit and awarded costs to the plaintiff.
Court Disposition
application dismissed with costs to the plaintiff
Orders
- The defendant's application dated 8th June 2015 is dismissed.
- Costs of the application are awarded to the plaintiff.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 634 OF 2007
DR. FAITH MULI...................................................PLAINTIFF
VERSUS
DR. MOSES NJUE GACHOKA
carrying on business in the name of
KINGS MEDICAL COLLEGE..................................DEFENDANT
RULING
1. Dr. Moses Njue Gachoka the Defendant herein took out the motion dated 8th June 2015 in which he sought for the
following orders:
1)THAT this application be certified as urgent and be heard ex parte in the first instance.
2)THAT this Honourable court be pleased to order a stay of execution of the order of the Ruling of Justice J.K. Sergon dated the 15th day of May 2015 pending the hearing and determination of the Applicants’ intended appeal vide the application dated 22nd May 2015.
3)THAT in the alternative and without prejudice to prayer 2 above, this court be pleased to enlarge time within which to comply with the Ruling of Justice J. K. Sergon dated the 15th day of May 2016 to 16th September 2015.
4) THAT the costs of and incidental to this application abide in the result of the said appeal.
2. The Defendant filed an affidavit he swore to support the motion. Dr. Faith Muli, the Plaintiff herein filed a replying affidavit he swore to oppose the aforesaid motion. When the motion came up for interpartes hearing, learned counsels appearing in the matter recorded a consent order to have the motion disposed of by written submissions.
3. I have considered the grounds set out on the face of the motion plus the facts deponed in the affidavits filed against and in support of the motion. I have further taken into account the rival written submissions.
4. Before considering the substance of the motion, let me set out in brief the background of this dispute. The Plaintiff sued the Defendant claiming damages for defamation. The suit was heard and in the end this court entered judgment in favour of the Plaintiff and against the Defendant in the sum of kshs.3,000,000 as general damages. The Defendant being dissatisfied with the aforesaid decision filed a notice of appeal to express his intention to challenge the decision in the court of Appeal.
5. The defendant successfully obtained before this court an order for stay of the decree pending appeal on condition he deposits a sum of kshs.1,000,000/= in court within 30 days. It would appear that the Defendant has been unable to comply with the order hence he is now before this court seeking for a stay of the order pending the hearing and determination of an application dated 22 May 2015 pending before the court of Appeal.
6. The Applicant has also sought for an alternative order for extension of time within which to comply with the order.
It is the Defendant’s argument that it is unable to raise the sum of kshs.1,000,000/- and he has thus filed a notice of appeal. The court of appeal Rules permits the Applicant to file a similar application before the Court of Appeal. The Court of Appeal rules does not envisage a situation where a litigant files an appeal against an order of this court to refuse an application for stay. This is the more reason why the Defendant/ Applicant filed a similar application before the Court of Appeal. I think the Defendant/Applicant’s conduct of filing a notice of appeal against a ruling on an application for stay of execution in my view amounts to an abuse of the court process. I consequently decline to grant the order.
7. The second limb of the Defendant’s motion is for an extension of time by 30 days to enable him comply with the condition to deposit the sum of kshs. 1,000,000/=. The notice of motion dated 8th June 2015 and ninety days have since passed so that this prayer is already overtaken by events in that the thirty days requested have lapsed.
8. In the circumstances of this case, I think a fair order that commends itself is in favour of the dismissal of the motion since the same lacks merit. The same is dismissed with costs to the Plaintiff.
Dated and delivered in open court this 25th day of September, 2015.
J. K. SERGON
JUDGE
In the presence of:
………………………………………. for the Plaintiff
……………………………………….for the Defendant