[2020] KEHC 5994 (KLR)
The court found that the applicants failed to comply with the conditions for stay of execution as set out in the ruling of 17th May, 2018, specifically the timely payment and deposit of the decretal sum. The delay in compliance and in bringing the present application was not satisfactorily explained. The court...
Source-derived case information.
- Citation
- [2020] KEHC 5994 (KLR)
- Parties
- Applicant: Githuku Nancy; Applicant: Daniel Kinyua Gakuu; Respondent: Lilian Mwikali Mbaluka (Suing as Administrator of the estate of the late Eric Ndambuki); Respondent: Kennedy James Ndambuki (Suing as Administrator of the estate of the late Eric Ndambuki)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 72 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution and Extension of Time
- Outcome
- application dismissed with costs to the respondent
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Execution, Extension of Time, Res Judicata, Decretal Sum, Non Compliance With Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Githuku Nancy
Applicant
Daniel Kinyua Gakuu
Applicant
Lilian Mwikali Mbaluka (Suing as Administrator of the estate of the late Eric Ndambuki)
Respondent
Kennedy James Ndambuki (Suing as Administrator of the estate of the late Eric Ndambuki)
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution and Extension of Time
Legal Issues
- 1 Whether the applicants are entitled to an extension of time to comply with the conditions for stay of execution set in the earlier ruling.
- 2 Whether the application for stay of execution is res judicata.
- 3 Whether the applicants have sufficiently explained the delay in compliance with the court order.
Ratio Decidendi
The court found that the applicants failed to comply with the conditions for stay of execution as set out in the ruling of 17th May, 2018, specifically the timely payment and deposit of the decretal sum. The delay in compliance and in bringing the present application was not satisfactorily explained. The court further held that the issue of stay of execution had already been determined and the present application was therefore res judicata. Consequently, the applicants were not entitled to the extension of time or variation of the order sought.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application dated 20th November, 2019 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MISC. APPLICATION NO. 72 OF 2017
GITHUKU NANCY...........................................................1ST APPELLANT/APPLICANT
DANIEL KINYUA GAKUU.............................................2ND APPELANT/APPLICANT
VERSUS
LILIAN MWIKALI MBALUKA(Suing as Administrator of the estate of the late
Eric Ndambuki (deceased).....................................................................1st RESPONDENT
KENNEDY JAMES NDAMBUKI(Suing as the administrator of the estate of the late
Eric Ndambuki) deceased)....................................................................2nd RESPONDENT
RULING
This is an application by way of Notice of Motion dated 20th, November 2019 seeking the substantive order that there be a stay of execution of the judgment and or decree of the lower court cited therein.
The applicant had earlier by an application dated 16th February, 2017 sought a stay of execution of the same judgment of the lower court.
In a ruling delivered on 17th May,2018 the application was allowed on condition that the applicants paid the respondents a sum of Kshs.2,000,000/= and deposit the balance of the decretal sum in an interest earning account in the joint names of the advocates on record for the parties within 30 days from the date of that ruling. Compliance thereof would have been by 18th June, 2018.
It has now transpired that there was no compliance with the conditions set in that ruling for reasons that have been stated in the present application.
In the present application, the applicants also seek extension of time within which to comply with the conditions given on 17th May,2018 by 21 days to enable them deposit Kshs. 1,000,000/= in court as opposed to a joint earning account. Alongside the said prayer, the applicants sought the variation of the order.
I have read the supporting affidavit and the replying affidavit. I have also considered the cited authorities. The applicants in both the earlier application dated 16th February, 2017 and the peent application cited Order 42 Rule 6 of the Civil Procedure Rules relating to stay of execution.
The order made on 17th May, 2018 was specific and unequivocal. The decretal sum, going by the record is Kshs. 5,014,212. 80. It is not clear why the applicants have stated the balance was Ksh. 1,000,000/=.
The cheques forwarded to counsel for the respondent amounting to Kshs. 2,000,000/= are dated 11th October, 2018 almost five months from the date the ruling was delivered. The present application was filed over one year from the date of expected compliance. The delay in complying with the court order, and filing of the application has not been sufficiently explained to the satisfaction of the court. The applications have also, on their own motion, purported to extend the court order in relation to the balance of the decretal sum to be deposited.
The applicants have sought the same order in the two applications. Having addressed the issue of stay of execution in the ruling of 17th May, 2018 the prayer in the present application is res judicata.
The applicants failed to comply with the conditions given for stay of execution within the set time lines. That time expired and what has expired may not be extended.
The applicants are not deserving of the orders sought and therefore, the application dated 20th November, 2019 is dismissed with costs to the respondent.
Dated and delivered this 7th day of May, 2020
MBOGHOLI MSAGHA
JUDGE