[2012] KEHC 3138 (KLR)
The court found that the delay in prosecuting the reference was not attributable to the applicant, as the reasons from the taxing master had only recently been provided. In the interest of justice and to preserve the subject matter pending the determination of the reference, the court granted a stay of execution...
Source-derived case information.
- Citation
- [2012] KEHC 3138 (KLR)
- Parties
- Applicant: Gerald O. Kimanga T/A Kimanga & Co; Respondent: Charles K. Tanui
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 58 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution Pending Reference
- Outcome
- Application for stay of execution granted with conditions.
- Judges
- HK Chemitei
- Legal Topics
- Stay of Execution, Taxation of Costs, Reference Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gerald O. Kimanga T/A Kimanga & Co
Applicant
Charles K. Tanui
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution Pending Reference
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the decree pending the hearing and determination of the reference.
- 2 Whether the applicant was responsible for the delay in prosecuting the reference.
- 3 Whether security should be provided pending the reference.
Ratio Decidendi
The court found that the delay in prosecuting the reference was not attributable to the applicant, as the reasons from the taxing master had only recently been provided. In the interest of justice and to preserve the subject matter pending the determination of the reference, the court granted a stay of execution against the applicant. The court further ordered the applicant to file the reference within twenty-one days and to deposit the title deed for the specified land parcel as security. The applicant was also injuncted from dealing with the land pending the outcome of the reference. Costs were awarded to the respondent.
Court Disposition
Application for stay of execution granted with conditions.
Orders
- There be stay of execution against the applicant pending the hearing and determination of the reference.
- The applicant to file the reference and fix it for hearing within twenty-one days from the date of the ruling.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT KISUMU
Miscellaneous Civil Application 58 of 2011
GERALD O. KIMANGA T/A KIMANGA & CO …...............................………ADVOCATES /APPLICANT
VERSUS
CHARLES K. TANUI ……………………..……….............................…………..CLIENT / RESPONDENT
RULING
By a Notice of Motion dated 4th April 2012 the applicant prays for the following orders:-
(a)That this application be certified as urgent and be heard exparte at the first instance.
(b)That leave be granted by the Honourable Court to hear this matter during vacation.
(c)That pending the hearing and determination of this application inter partes, there be granted a temporary order of stay of execution of the decree dated 23rd February 2012.
(d)That pending the hearing and determination of the Respondent’s intended appeal and/or application against the decision of the Taxing Officer dated 29th April 2011 to the Honourable Judge there be granted a stay of execution of the Orders of 23rd February 2012.
(e)That costs be in the cause.
The same is supported by his affidavit sworn on 4th April 2012. The basic argument is that he is dissatisfied with the orders of the taxing master which awarded the respondent the sum of Kshs. 855,959. 70. The taxing Master order has already been adopted as the decree of the court.
When this matter came up for hearing I ordered that the taxing master do give his reasons which he did by the letter dated 25th June 2012.
The respondent on the other hand has filed a replying affidavit dated 18th May 2012 opposing the said application. In the said affidavit his argument is that the applicant has not been keen enough to pursue the taxing master so as to get the reasons and thereafter to process the reference.
Having perused the pleadings herein I find that the delay in prosecuting the reference was not on the part of the applicant. However now that the taxing officer has given his reasons this matter has to move forward.
The respondent had a decree in his favour which he needs to enjoy its fruits.
I do therefore note the following orders:-
(1)There be stay of execution against the applicant pending the hearing and determination of the reference.
(2)The applicant do proceed to file the reference and fix it for hearing within the next twenty one (21) days from the date of this Ruling .
(3)The applicant do deposit in court title deed for land parcel number Nandi / Chebilat / 703 with the Deputy Registrar within the next twenty one days from the date herein.
(4)The applicant is injuncted from selling, disposing, charging or in any other way dealing with land parcel number Nandi / Chebilat / 703 pending the hearing and determination of the reference.
(5)Costs to the respondent.
Dated, signed and delivered at Kisumu this 13th of July 2012
H. K. CHEMITEI
JUDGE
In the presence of:
Lore for Kowinoh Advocate for Applicant
Kimanga Advocate for Respondent.
HKC/aao