[2017] KEHC 2012 (KLR)

[2017] KEHC 2012 (KLR)

The court found that an order of stay of execution had already been issued on 21st July 2016 and remained in force. The applicant had complied with the terms of the stay by depositing the required sum in court. There was no dispute regarding these facts. The court held that it was improper for warrants of attachment and sale to have been issued while the stay order was still operative. Consequently, the warrants and any execution based on them were recalled and annulled as illegal and void. The court declined to issue a further stay order, as the existing one was sufficient. The appellant was ordered to bear the costs of the application and any auctioneer's costs incurred.

Citation
[2017] KEHC 2012 (KLR)
Parties
Appellant: Gilbert Wanjala Fwamba; Respondent: P.N. Mashru Ltd
Court
High Court
Court Station
High Court at Bungoma
Jurisdiction
Kenya
Judgment Date
21 September 2017
Case Number
Civil Appeal 68 of 2013
Procedural Posture
Civil Appeal / Ruling on Stay Application and Related Execution Orders
Outcome
Application allowed in part; warrants of attachment and sale recalled and annulled; costs to appellant.
Judges
A Ali-Aroni
Legal Topics
Stay of Execution, Res Judicata, Execution of Decree, Court Orders, Costs, Abuse of Process
Source Language
English
Civil Procedure Stay of Execution Res Judicata Execution of Decree Court Orders Costs Abuse of Process

Case Brief

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Parties

Gilbert Wanjala Fwamba

Appellant

P.N. Mashru Ltd

Respondent

Procedural Posture

Civil Appeal / Ruling on Stay Application and Related Execution Orders

Legal Issues

  1. 1 Whether a further order of stay of execution should be granted when an earlier stay order remains in force.
  2. 2 Whether the warrants of attachment and sale issued were valid in light of the existing stay order.
  3. 3 Whether the execution process undertaken was legal or void.

Ratio Decidendi

The court found that an order of stay of execution had already been issued on 21st July 2016 and remained in force. The applicant had complied with the terms of the stay by depositing the required sum in court. There was no dispute regarding these facts. The court held that it was improper for warrants of attachment and sale to have been issued while the stay order was still operative. Consequently, the warrants and any execution based on them were recalled and annulled as illegal and void. The court declined to issue a further stay order, as the existing one was sufficient. The appellant was ordered to bear the costs of the application and any auctioneer's costs incurred.

Court Disposition

Application allowed in part; warrants of attachment and sale recalled and annulled; costs to appellant.

Orders

  • The warrants of attachment and sale issued and dated 16th January 2017 are recalled and annulled.
  • Any execution process based on the warrants is declared illegal and void.