[2021] KEHC 9199 (KLR)
The court found that although the appellant failed to comply with the original order to deposit the decretal sum within 30 days, and did not demonstrate good faith by making an offer within the requested three-month period, the interests of justice warranted a final opportunity. The court exercised its discretion to...
Source-derived case information.
- Citation
- [2021] KEHC 9199 (KLR)
- Parties
- Appellant: Fuad Hussein Mohamed; Respondent: Adan Isaack Ibrahim
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 767 of 2019
- Procedural Posture
- Civil Appeal / Ruling on Application for Extension of Time and Review of Stay Order
- Outcome
- Application partially allowed with conditions.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Execution, Extension of Time, Review of Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Fuad Hussein Mohamed
Appellant
Adan Isaack Ibrahim
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Extension of Time and Review of Stay Order
Legal Issues
- 1 Whether the appellant should be granted an extension of time to deposit the decretal sum in court as a condition for stay of execution.
- 2 Whether the court should review its earlier order regarding the stay of execution and the time for compliance.
Ratio Decidendi
The court found that although the appellant failed to comply with the original order to deposit the decretal sum within 30 days, and did not demonstrate good faith by making an offer within the requested three-month period, the interests of justice warranted a final opportunity. The court exercised its discretion to allow the appellant fourteen more days from the date of the ruling to deposit the decretal sum in court, extending the stay of execution for the same period. The respondent was awarded the costs of the application due to the appellant's delay and lack of prompt compliance.
Court Disposition
Application partially allowed with conditions.
Orders
- The appellant shall deposit the decretal sum in court within fourteen (14) days from the date of this ruling.
- Stay of execution is extended by fourteen (14) days from the date of this ruling.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL NO. 767 OF 2019
FUAD HUSSEIN MOHAMED.....APPELLANT
VERSUS
ADAN ISAACK IBRAHIM ........RESPONDENT
RULING
By an application dated 20th July, 2020 the appellant requested
for extension of interim orders earlier issued in this matter, and a review of the order or ruling made on 18th June, 2020. In that ruling, the court gave an order for stay of execution on condition that the decretal sum is deposited in court within 30 days from that date.
The appellant did not comply, and in the present application there is a prayer that time be enlarged within which to comply with the said order, and that the decretal sum be deposited in court within three months.
Several reasons have been advanced by the applicant to which there is a reply on behalf of the respondent in opposition to the application. Both parties have also filed submissions which I have considered.
It is important to note that the extension of time and the stay order was requested for way back in July, 2020. We are now in the month of February, 2021 which is about six months from the time the application was filed. If it was true that the applicant made the application in good faith in asking for three months, an offer ought to have been made in or about the month of November, 2020. No such offer was made as there is no evidence to that effect; and if any existed, the applicant would have said so.
The foregoing notwithstanding, to demonstrate good faith let the applicant deposit the decretal sum in court within fourteen (14) from the date of this ruling. Stay of execution is extended by the same period. The respondent shall have the costs of this application.
Dated, signed and delivered at Nairobi this 11th day of February, 2021.
A. MBOGHOLI MSAGHA
JUDGE