[2012] KEHC 813 (KLR)
The court held that since there was a subsisting order staying proceedings in the suit, issued on 3rd March, 2005, it was not open to the plaintiff to bring the present application for deposit of mesne profits. The stay order applied to all proceedings in the matter, including interlocutory applications such as the...
Source-derived case information.
- Citation
- [2012] KEHC 813 (KLR)
- Parties
- Plaintiff: Giro Commercial Bank; Defendant: Macho Credit Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 603 of 2004
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Application
- Outcome
- Application struck out. Each party to bear its own costs.
- Judges
- CM Njagi, GV Odunga
- Legal Topics
- Stay of Proceedings, Mesne Profits, Preliminary Objection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Giro Commercial Bank
Plaintiff
Macho Credit Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the court can entertain the plaintiff's application for deposit of mesne profits in light of an existing stay of proceedings order.
- 2 Whether the stay of proceedings order issued on 3rd March, 2005 precludes the current application.
Ratio Decidendi
The court held that since there was a subsisting order staying proceedings in the suit, issued on 3rd March, 2005, it was not open to the plaintiff to bring the present application for deposit of mesne profits. The stay order applied to all proceedings in the matter, including interlocutory applications such as the one before the court. The court emphasized that it could not interfere with its own order unless the stay was formally set aside. Consequently, the application was not well founded and was struck out.
Court Disposition
Application struck out. Each party to bear its own costs.
Orders
- The plaintiff's application dated 13th July, 2010 is struck out.
- Each party to bear its own costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
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GIRO COMMERCIAL BANK…………………………..PLAINTIFF
VERSUS
MACHO CREDIT LIMITED…………...………..……DEFENDANT
RULING
By an application by a Notice of Motion dated 13th July, 2010 and taken out under Section 1A, 1B and 3A of Civil Procedure Act,and Order L Rule 1of the Civil Procedure Rules,the Plaintiff applies for an order that the Defendant be ordered to deposit with this court or in a joint interest earning account an amount of Kshs. 12,950,400. 00 being mesne profits which have accrued in this matter. In default of making the deposit aforesaid, the order of stay of proceedings made by this court on 3rd March, 2005 be vacated.
To this application, the Respondent filed a Notice of Preliminary Objection. The latter is based inter alia, on the grounds that this matter has an order for stay of proceedings which includes the current application. Consequently the stay order issued herein has not been set aside and the court cannot interfere with its own order in the circumstances.
It is common ground that there is on record a court order made on 3rd March, 2005 staying the suit. On that ground alone, this application is not well founded and it is hereby struck out. Each party to bear its own costs.
L. NJAGI
JUDGE
DATEDand DELIVERED at NAIROBI this 5th day of November, 2012.
ODUNGA
JUDGE