[2021] KEHC 3780 (KLR)
The High Court, having dismissed the appeal, became functus officio and lacked jurisdiction to entertain the appellant's application for stay of execution or to grant orders for payment of costs by instalments. The issues raised in the application were new and had not been canvassed in the appeal. Any dispute...
Source-derived case information.
- Citation
- [2021] KEHC 3780 (KLR)
- Parties
- Appellant: Isaac Gichunge Leakey; Respondent: Njogu Titus Gichuru
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 14 of 2020
- Procedural Posture
- Civil Appeal / Ruling on Post Judgment Stay Application
- Outcome
- application dismissed
- Judges
- TW Cherere
- Legal Topics
- Stay of Execution, Functus Officio, Jurisdiction of Appellate Court, Costs Taxation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaac Gichunge Leakey
Appellant
Njogu Titus Gichuru
Respondent
Procedural Posture
Civil Appeal / Ruling on Post Judgment Stay Application
Legal Issues
- 1 Whether the High Court has jurisdiction to grant a stay of execution after dismissing the appeal and becoming functus officio.
- 2 Whether the appellant is entitled to pay costs in instalments after the appeal has been dismissed.
- 3 Whether the application for stay of execution raises new issues not determined in the appeal.
Ratio Decidendi
The High Court, having dismissed the appeal, became functus officio and lacked jurisdiction to entertain the appellant's application for stay of execution or to grant orders for payment of costs by instalments. The issues raised in the application were new and had not been canvassed in the appeal. Any dispute regarding the warrants of attachment or execution should be addressed before the trial court, which issued the warrants. The application was therefore dismissed with costs to the respondent, and the interim stay of execution previously granted was set aside.
Court Disposition
application dismissed
Orders
- The order of stay of execution of warrants dated 3rd June, 2021 and issued on 4th June, 2021 is set aside.
- The application dated 31st May 2021 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
(CORAM: CHERERE-J)
CIVIL APPEAL NO. 14 OF 2020
BETWEEN
ISAAC GICHUNGE LEAKEY .............................APPELLANT
AND
NJOGU TITUS GICHURU....................................RESPONDENT
RULING
1. By a judgment dated 06th May, 2021, this court dismissed Appellant’s appeal with costs to the Respondent/Applicant.
2. Subsequently on 24th May, 2021, this court ordered that Kshs. 700,000/- deposited by the Appellant with Kenya Commercial Bank, Meru Branch be released to Applicant’s advocate Ms. Mwirigi Kaburu Advocates.
3. Afterwards and more particularly on 31st May, 2021, Appellant filed a notice of motion for stay of execution of attachment of warrants in MERU CMCC NO. 40 OF 2019 seeking to avoid payment of auctioneer charges and also to pay costs in the lower court and in the appeal in instalments. A temporary stay order was granted on 03rd June, 2021.
4. The application is based on grounds among others that the Respondent has obtained warrants of attachment for Kshs. 943,319/- which includes Kshs. 700,000/- deposited in the joint names of both advocates and further on the ground that Applicant has not refused to pay costs.
5. The application is also supported by an affidavit sworn by the Appellant on 02nd June, 2021in which he reiterates the grounds on the face of the application.
6. The application is opposed on the basis of grounds of opposition dated 19th July, 2021. Respondent contends that having dismissed the Appellant’s appeal, the court was functus officio, it has no jurisdiction to stay execution of warrants validly issued by the trial court and further that costs which the Appellant seeks to pay in instalments have not been taxed.
7. I have considered the application in the light of the supporting affidavit, the grounds of opposition and submission on behalf of both parties.
8. As I have stated above, this court has already rendered its decision in this matter and dismissed the appeal. This application raises new issues that Appellant did not raise in the appeal and this court having heard and determined the appeal is not seized of jurisdiction to determine those issues. Further the dismissal of the appeal resulted in this court confirming the orders of the trial court. I am in agreement with the Respondent’s submission that this court is functus officio and any dispute concerning the warrants of attachment ought to be tried by the trial court.
9. In the end, it is hereby ordered:
1. The order of stay of execution of warrants dated03rd June, 2021 and issued on 04th June, 2021 is set aside
2. Theapplication dated 31st May 2021 is dismissed withcosts to the Respondent
DATED AT MERU THIS 30TH DAY OF SEPTEMBER,2021
T. W. CHERERE
JUDGE
Court Assistant -Morris Kinoti
For Appellant - Ms. Otieno for M/s Maitai Rimita & Co. Advocates
For Respondent - Mr. Mwirigi for M/s Mwirigi Kaburu & Co. Advocates