[2006] KEHC 659 (KLR)
The court determined that its ruling of 16th June, 2006 did in fact grant a stay of execution pending appeal, as evidenced by the language requiring the Plaintiff to provide security to the Defendants. The court rejected the Defendants' argument that the absence of a repeated grant of stay in the summary section...
Source-derived case information.
- Citation
- [2006] KEHC 659 (KLR)
- Parties
- Plaintiff: FINA BANK LIMITED; Defendant: ANIL MOHANLAL CHANDARANA; Defendant: MIRA ANIL CHANDARANA
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1100 of 2000
- Procedural Posture
- Civil Case / Post Judgment, Order Settling
- Outcome
- Application for settlement of order terms allowed; stay of execution confirmed pending appeal, subject to security.
- Judges
- MM Kasango
- Legal Topics
- Stay of Execution, Settlement of Orders, Security for Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
FINA BANK LIMITED
Plaintiff
ANIL MOHANLAL CHANDARANA
Defendant
MIRA ANIL CHANDARANA
Defendant
Procedural Posture
Civil Case / Post Judgment, Order Settling
Legal Issues
- 1 Whether the court granted a stay of execution pending appeal in its ruling of 16th June, 2006.
- 2 Whether the terms of the order to be extracted should reflect the entirety of the court's ruling, including the grant of stay and requirement for security.
Ratio Decidendi
The court determined that its ruling of 16th June, 2006 did in fact grant a stay of execution pending appeal, as evidenced by the language requiring the Plaintiff to provide security to the Defendants. The court rejected the Defendants' argument that the absence of a repeated grant of stay in the summary section negated the substantive grant within the body of the ruling. The court further held that, in settling the terms of the order, it is essential to consider the whole ruling to ensure the order accurately reflects the court's decision. The court exercised its inherent power to settle the terms of the order accordingly, confirming the stay of execution and the requirement for security...
Court Disposition
Application for settlement of order terms allowed; stay of execution confirmed pending appeal, subject to security.
Orders
- There be a stay of execution pending the hearing and determination of an appeal preferred by the Plaintiff against the judgement herein.
- An account be opened at any of the Plaintiff’s branches in the joint names of all three advocates to deposit Kshs.2,842,649.80 in an interest earning account pending the Plaintiff’s appeal.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL COURTS) Civil Case 1100 of 2000
FINA BANK LIMITED ……………………..………..………….PLAINTIFF
VERSUS
ANIL MOHANLAL CHANDARANA ……..……………1ST DEFENDANT
MIRA ANIL CHANDARANA …………………….…….2ND DEFENDANT
RULING
The Plaintiff has moved by way of mention and by what the advocate stated that is Order XX Rule 7(2) of the Civil Procedure Rules. This court heard this case and delivered its judgement on 11th November, 2004 whereby the Plaintiff’s suit as against the Defendant was dismissed. The Plaintiff by Notice of Motion dated 25th April, 2006 sought stay of execution for the taxed costs pending appeal. The court delivered a ruling in that respect on 16th June, 2006. In the drafting of the order that is the expression of that ruling the parties have disagreed and hence why this matter was referred to the court to settle the terms of the order. Although the Plaintiff moved under Order XX Rule 7(2), the court is of the view that that rule refers to a decree. A decree is not an order. However, even if it is not a decree the court is not powerless to settle the terms of the order as set by the Plaintiff under inherent power of the court. The disagreement with the parties is that the Defendants are of the view that this court did not grant the Plaintiff stay of execution.
I have had an opportunity once again to read the ruling delivered on 16th June, 2006 and I am able to confirm that this court did order stay pending appeal. It is pertinent perhaps to quote a sentence of that ruling as follows:-
“To ensure that that balance is achieved it is necessary, in ordering stay, that the plaintiff does give security to the defendants”.
The court does not accept the argument of the Defendants that this court did not grant stay simply because in the summary of its ruling it did not repeat that stay had been granted. The court also does not accept that in settling the terms of the order as sought by the Plaintiff is reviewing the ruling of 16th June, 2006. The Defendants if they are of the view that there are certain errors in that ruling ought to appropriately move this court. In order to correctly reflect the ruling of the court it is essentials that the whole ruling is considered when an order is being extracted. A party cannot chose to pay regard to certain portions of the ruling and to exclude other portions. For that reason the correct order that ought to be extracted from the ruling of this court of 16th June, 2006 should be in the following terms:-
1. THATthere be a stay of execution pending the hearing and determination of an Appeal preferred by the Plaintiff against the Judgement herein.
2. THATan Account be opened at any of the Plaintiff’s branches which shall be in joint names of all three Advocates hereof, that is, KIPKORIR, TITOO & KIARA ADVOCATES, DESAI, SARVIA & PALLAN ADVOCATES and HARIT SHETH ADVOCATES to deposit Kshs.2,842,649. 80 in an interest earning account pending the Plaintiff’s Appeal.
3. THATthe costs of the Notice of Motion dated 25th April, 2006 shall abide with the Plaintiff’s appeal.
MARY KASANGO
JUDGE
Dated and delivered this 7th December, 2006.
MARY KASANGO
JUDGE