[2004] KEHC 333 (KLR)
The court found that the plaintiff's reliance on Order 21 Rule 25 was misplaced because the provision only applies where there is a pending suit, not an appeal. The court further held that the plaintiff had previously filed three similar applications for stay of execution, all of which had been denied. The present...
Source-derived case information.
- Citation
- [2004] KEHC 333 (KLR)
- Parties
- Plaintiff: George Gikubu Mbuthia; Defendant: Peter Njeru Mugo; Defendant: Geoffrey Kariuki Mwenda; Defendant: Hon Attorney General; Defendant: Consolidated Bank of Kenya
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1260 of 2002
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs; plaintiff barred from further similar applications until costs paid
- Legal Topics
- Stay of Execution, Res Judicata, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Gikubu Mbuthia
Plaintiff
Peter Njeru Mugo
Defendant
Geoffrey Kariuki Mwenda
Defendant
Hon Attorney General
Defendant
Consolidated Bank of Kenya
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the plaintiff is entitled to a stay of execution of the decree pending hearing of the civil application in the Court of Appeal.
- 2 Whether the repeated applications for stay amount to res judicata and abuse of court process.
Ratio Decidendi
The court found that the plaintiff's reliance on Order 21 Rule 25 was misplaced because the provision only applies where there is a pending suit, not an appeal. The court further held that the plaintiff had previously filed three similar applications for stay of execution, all of which had been denied. The present application was therefore res judicata and a blatant abuse of the court process. The court emphasized that it would not allow its process to be continually abused by repeated, unmeritorious applications. As a result, the application was dismissed with costs, and the plaintiff was barred from filing further applications for stay of execution unless and until he paid the specified...
Court Disposition
application dismissed with costs; plaintiff barred from further similar applications until costs paid
Orders
- The plaintiff’s application dated 24th November 2004 is dismissed with costs to all the defendants.
- The plaintiff is barred from filing any further application for stay of execution of the decree of 20th March 2003 unless and until he pays the 2nd defendant's principal costs of KES 126,290.00 and also pays the costs of 1st and 4th defendants of the application dated 24th November 2004.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Case 1260 of 2002
GEORGE GIKUBU MBUTHIA ………………………………....…………PLAINTIFF
VERSUS
PETER NJERU MUGO ……………..……………...………….….…1ST DEFENDANT
GEOFFREY KARIUKI MWENDA ……………....………………....2ND DEFENDANT
HON ATTORNEY GENERAL………………….....………….……....3RD DEFENDANT
CONSOLIDATED BANK OF KENYA ………….......…………….…4TH DEFENDANT
R U L I N G
The plaintiff for the umpteen time has filed an application for stay of execution of the decree passed by this court on 20th March 2003.
The first application was filed on 20th May 2003, the second on 20th January 2004 and the third on 20th May 2004.
The present application is dated 24th November 2004 and is brought under Order 21 Rule 25 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act.
The application seeks an order that, the court do stay execution for the decree given by this court on 20. 3.2003 pending hearing of civil application No. NAI 225 of 2003.
What the plaintiff essentially seeks from this court is stay of execution pending the hearing of the civil application No. 225 of 2003 in the court of appeal.
The order 21 rule 25 relied upon by the plaintiff is misconceived because it talks of stay being granted because of appending suit. Here it is not the case because what is pending is not suit but appeals in the court of appeal.
When the plaintiff was asked by the court why he had not brought application under order 41 rule 4 he was quick to say that it was because he has a pending suit and on that basis he sought stay. Now, the plaintiff is an intelligent man and he was obviously aware of the standards he needs to meet in regard to Order 41 but whether his intention is to exasperate the court and the counsels for the defendants it is not clear to me.
The plaintiff despite severally being warned by the court to steer clear of any submission which related to the merits of the case and which was tantamount to seeking appeal he simply ignored that warning and as a consequence there is no single argument that the court can use to decide whether the plaintiff can be entitled to a stay of execution.
Over and above that the plaintiff has made three (3) previous applications for stay, which have been denied. The present application therefore more than anything is res judicata and is a blatant abuse of the court process.
The court will reject the plaintiff application for the reasons stated herein above and the court is minded to make stern orders to ensure that the plaintiff will not continually abuse its process.
The orders of this court are as follows: -
(1) The plaintiff’s application dated 24th November 2004 is dismissed with costs to all the defendants.
(2) The plaintiff is barred from filing any further application for stay of execution of the decree of 20th March 2003 unless and until he pays the 2nd defendants principal costs of kshs 126, 290. 00 and also pay the costs of 1st and 4th defendants of the application dated 24th November 2004.
Dated and delivered this 17th day of December 2004.
MARY KASANGO
JUDGE