[2009] KEHC 919 (KLR)
The court found that the applicant failed to provide sufficient reasons to justify the grant of a stay of execution and proceedings. The judge noted that granting a stay would prejudice the interests of numerous litigants involved in the various suits listed in the affidavit. Furthermore, the court was not satisfied...
Source-derived case information.
- Citation
- [2009] KEHC 919 (KLR)
- Parties
- Plaintiff: Great Southern Coach; Defendant: In the Matter of Companies Act
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Winding Up Cause 26 of 2008
- Procedural Posture
- Winding Up Cause / Ruling on Application for Stay of Execution and Proceedings Pending Winding Up
- Outcome
- application dismissed
- Legal Topics
- Winding Up Petition, Company Liquidation, Stay of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Great Southern Coach
Plaintiff
In the Matter of Companies Act
Defendant
Procedural Posture
Winding Up Cause / Ruling on Application for Stay of Execution and Proceedings Pending Winding Up
Legal Issues
- 1 Whether the court should grant a stay of execution and stay of proceedings in various matters pending the finalization of the winding up cause.
- 2 Whether the applicant has demonstrated sufficient grounds for the exercise of the court's discretion to grant a stay.
Ratio Decidendi
The court found that the applicant failed to provide sufficient reasons to justify the grant of a stay of execution and proceedings. The judge noted that granting a stay would prejudice the interests of numerous litigants involved in the various suits listed in the affidavit. Furthermore, the court was not satisfied that the application was made in good faith. Consequently, the court exercised its discretion to refuse the stay, emphasizing that the interests of justice and fairness to all parties must prevail over the applicant's request.
Court Disposition
application dismissed
Orders
- The application for stay of execution and stay of proceedings is dismissed.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Winding Up Cause 26 of 2008
GREAT SOUTHERN COACH …………………………..… PLAINTIFF
VERSUS
IN THE MATTER OF COMPANIES ACT ……………...DEFENDANT
R U L I N G
The applicant is the company faced by a creditor winding up petition. Notice of motion dated 20/5/09 is brought under Section 223 (b), 225 Companies Act and CivilProcedureAct, Section 3A, 34and63 (e), Rule 7 (1) Companies Act, Order 21 Rule 22 (1)and Order 50 Rule (1).
The applicant (the Company) seeks orders that pending the hearing and determination of this application the court do order a stay of execution of decree and stay of proceedings in the matters listed under paragraph 2 and 3 and 4 of the motion pending the finalization of the Winding Up Cause. The creditor’s petition is for a debt of Kshs.982,187/= only.
The powers of court to stay proceedings is discretionally under Section 223 of Companies Act. The supporting affidavit states that for reason of the Winding Up proceedings the company shall not have capacity to proceed with all these suits.
I have perused the lists of cases contained in the affidavit. They are several and must involve sums of money. I am of the view that the interests of so many litigants would be prejudiced if stay was granted and it appears the orders are not sought in good faith.
I find no good reasons adduced to warrant making a stay order. The application is dismissed.
It is so ordered.
DATED, SIGNED and DELIVERED at Nairobi this 17th day of July, 2009.
JOYCE N. KHAMINWA
JUDGE