[2018] KEHC 2512 (KLR)
The court found that the issues raised in the present application for stay of sale were substantially similar to those previously determined by Judge Mwangi Njoroge in the ELC court, save for the aspect of alternative settlement. The court held that it would not revisit matters already adjudicated and that there was...
Source-derived case information.
- Citation
- [2018] KEHC 2512 (KLR)
- Parties
- Applicant: Henry Simon Nyangau; Respondent: Edna Cherono Bore; Respondent: Spire Bank Ltd; Respondent: Pampa Cheruscaria Ltd; Respondent: Joseph M. Gikonya t/a Garam Investment Auctioneers
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Civil Case 8 of 2018
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Sale Pending Appeal
- Outcome
- application dismissed
- Judges
- HK Chemitei
- Legal Topics
- Stay of Execution, Statutory Power of Sale, Injunctions, Mortgage Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Henry Simon Nyangau
Applicant
Edna Cherono Bore
Respondent
Spire Bank Ltd
Respondent
Pampa Cheruscaria Ltd
Respondent
Joseph M. Gikonya t/a Garam Investment Auctioneers
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Sale Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of sale of Land parcel No. Kitale Municipality Block 2116/1050 pending appeal.
- 2 Whether the issues raised in the current application are res judicata, having been previously determined.
- 3 Whether interim injunctive orders should be vacated.
Ratio Decidendi
The court found that the issues raised in the present application for stay of sale were substantially similar to those previously determined by Judge Mwangi Njoroge in the ELC court, save for the aspect of alternative settlement. The court held that it would not revisit matters already adjudicated and that there was no sufficient basis to grant a further stay. Consequently, the application was dismissed and the interim injunctive orders previously issued were vacated. Costs were awarded to the 2nd, 3rd, and 4th respondents.
Court Disposition
application dismissed
Orders
- The application dated 14/8/2018 is dismissed with costs to the 2nd, 3rd, and 4th respondents.
- The interim orders of injunction earlier issued are vacated.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KITALE
CIVIL CASE NO. 8 OF 2018
HENRY SIMON NYANGAU.....................................PLAINTIFF/APPLICANT
VERSUS
EDNA CHERONO BORE............................1ST DEFENDANT/RESPONDENT
SPIRE BANK LTD......................................2ND DEFENDANT/RESPONDENT
PAMPA CHERUSCARIA LTD..................3RD DEFENDANT/RESPONDENT
JOSEPH M. GIKONYA T/A GARAM
INVESTMENTAUCTIONEERS..............4TH DEFENDANT/RESPONDENT
R U L I N G
1. The application herein dated 14/8/2018 is the 3rd one to be filed by the applicant to seek stay of sale of Land parcel No. Kitale Municipality Block 2116/1050 by the 2nd Respondent in realisation of its statutory power of sale. It further seeks stay pending an intended appeal.
2. I have perused the proceedings herein and specifically the lengthy decision of my brother in ELC court Judge Mwangi Njoroge dated 4/7/2017. Save for the prayer number (e) that the parties be granted 60 days to attempt an alternative settlement, I find the other issues raised by the applicant similar to these raised before Njoroge J.
3. For the above reasons I shall not waste much judicial time. Between July 2018 and todate, I presume that the applicant as well as the the 2nnd Respondent have made an attempt to settle the liability.
4. Having perused the pleadings herein I am inclined to dismiss the application herein dated 14/8/2018 with costs to the 2nd, 3rd and 4th Respondents. The interim orders of injunction earlier issued are vacated.
Delivered, signed and dated at Kitale this 29th day of October, 2018.
________________
H.K. CHEMITEI
JUDGE
29/10/18
In the presence of:
Karani for Applicant
No appearance for Respondents
Court Assistant – Kirong
Ruling read in open court.