[2006] KEHC 2105 (KLR)
The court found that the applicant raised a serious issue regarding his identity and whether he was the proper party against whom the judgment was executed. Given the allegation that a stranger may have been committed to civil jail, the court held that the applicant's right to be heard must be protected....
Source-derived case information.
- Citation
- [2006] KEHC 2105 (KLR)
- Parties
- Respondent: Grace Muthoni Kabui; Appellant: Joseph Karume Njenga
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 457 of 2003
- Procedural Posture
- Civil Appeal / Application for Stay of Execution Pending Appeal
- Outcome
- Stay of execution granted pending appeal.
- Legal Topics
- Stay of Execution, Exparte Judgment, Setting Aside Judgment, Civil Jail, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Grace Muthoni Kabui
Respondent
Joseph Karume Njenga
Appellant
Procedural Posture
Civil Appeal / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the subordinate court's orders committing him to civil jail pending appeal.
- 2 Whether the applicant was properly identified as the judgment debtor or was a stranger to the proceedings.
- 3 Whether the applicant's right to be heard was violated.
Ratio Decidendi
The court found that the applicant raised a serious issue regarding his identity and whether he was the proper party against whom the judgment was executed. Given the allegation that a stranger may have been committed to civil jail, the court held that the applicant's right to be heard must be protected. Accordingly, the court granted a stay of execution of the trial court's orders committing the applicant to civil jail pending the determination of the appeal, emphasizing the importance of ensuring that only the correct party is subjected to execution and that due process is followed.
Court Disposition
Stay of execution granted pending appeal.
Orders
- There shall be a stay of execution of the trial court's orders committing the applicant to 30 days civil jail pending appeal.
- Costs of this application shall be in the cause.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Appeal 457 of 2003
GRACE MUTHON KABUI ……………................................................……………. PLAINTIFF
VERSUS
JOSEPH KARUME NJENGA …………….….................................................... DEFENDANT
RULING
1. PROCEDURES AND BACKGROUND
1. The application before me is brought under Order 41 r 4 (1) Civil Procedure Rules and Seciton 3A and 63 (e) Civil Procedure Act. It seeks prayers of stay of execution of the subordinate courts orders against the applicant who has filed an appeal to this High Court.
2. Grace Muthoni Kabui (Original plaintiff respondent/respondent) sued Joseph Karume Njenga (the original dafendant/appeallant/applicant) of alleged fraud. She removed timber/and or presumably trees from a forest worth Ksh.150,000/-. The applicant took the said bulk timber/trees and sold the same but did not pay Ksh.150,000/-. He failed to enter appearance and file defence even when he was aware that summons were left with his relative. When he rushed to court he found the respondent had obtained judgment against him exparte.
3. An application to set aside the exparte judgment was refushed. The application before me indicates that the applicants former advocate failed to diligently persecute the same, a delay was therefore occasioned.
4. The respondent (Grace Muthoni Kabui) then executed the courts judgment. The applicant (Joseph Karume)was unable to pay. He was committed to civil jail on the 30. 6.05.
5. On the very same day an application for stay of the trial magistrate orders was made. Namely, that the orders that committed the applicant to civil jail be stayed. Ojwang J stayed the magistrates orders on 30. 6.05.
6. The parties appeared before me on 27. 4.06 for an interparties hearing. The applicant “surprisingly” alleged that he infact was NOT Joseph Karume Njenga. He was one Antony Karume Njenga. This, the respondent objected to as in the magistrates courts he actually swore an affidavit that he was one Joseph Karume Njenga on the 11. 9.03.
7. The applicant nonetheless admitted that he had a good defence. This defene consisting of 5 paragraph/lines were denials to the plaint.
II: FINDINGS
8. The question to ask should the appeallant continue to serve 30 days imprisonment pending the appeal of his case? If the appellant was at all times Joseph Karume Njenga the answer would have been no and thus the application for stay of the court orders pending appeal would have been granted on grounds that a party has a right to be heard.
9. In this instance a new matter has arisen. That the trial magistrate had committed a stranger. These are serious allegations and raises questions to be considered in the appeal. The trial magistrate is alleged to have been aware of these questions.
10. I hereby find that the applicant has a right to be heard. That pending this appeal I order there be a stay of execution of the trial courts orders committing the applicant to 30 days civil jail.
11. I further order that the costs of this application be in the cause.
Dated this 28th day of May 2006 at Nairobi.
M.A. ANG’AWA
JUDGE
Mwangi Wahome & Co. Advocates for the plaintiff/respondent
Njomo Njenga & Co. Advocates for the defendant/applicant