[2004] KEHC 262 (KLR)
The court found that the defendant failed to comply with the explicit terms of the stay order, which required the deposit of the decretal sum in a joint interest earning account within 30 days and with the plaintiff's advocate as a joint holder. The defendant neither deposited the money as ordered nor sought an...
Source-derived case information.
- Citation
- [2004] KEHC 262 (KLR)
- Parties
- Plaintiff: James Gori; Defendant: Kenya Ports Authority
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 390 of 1995
- Procedural Posture
- Civil Suit / Ruling on Application to Discharge Stay
- Outcome
- Application allowed; stay of execution discharged; costs to the plaintiff.
- Legal Topics
- Stay of Execution, Compliance With Court Orders, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Gori
Plaintiff
Kenya Ports Authority
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Discharge Stay
Legal Issues
- 1 Whether the defendant complied with the court order to deposit the decretal sum in a joint interest earning account within the stipulated time.
- 2 Whether the stay of execution should be discharged due to non-compliance with the court's conditions.
Ratio Decidendi
The court found that the defendant failed to comply with the explicit terms of the stay order, which required the deposit of the decretal sum in a joint interest earning account within 30 days and with the plaintiff's advocate as a joint holder. The defendant neither deposited the money as ordered nor sought an extension of time. The court rejected the defendant's excuses and attempts to alter the terms of the order by including his legal assistant as a joint operator of the account. The court concluded that the defendant had deliberately chosen to defy the court order, and therefore, the stay of execution was discharged and the application allowed with costs to the plaintiff.
Court Disposition
Application allowed; stay of execution discharged; costs to the plaintiff.
Orders
- The stay of execution previously granted is discharged.
- The application by the plaintiff is allowed as prayed.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA Civil Suit 390 of 1995
JAMES GORI …………………………………...……………………… PLAINTIFF
V E R S U S
KENYA PORTS AUTHORITY …………...………………………… DEFENDANT
R U L I N G
In this case the defendant applied for stay of execution of decree on the grounds that he had filed an appeal and other grounds advanced their. The court granted the stay pending an appeal on certain conditions namely that the defendant was to deposit the amount of decree in an interest earning joint account to be held by both advocates. The deposit was to be ………….. within 30 days from the date of the ruling (17. 11. 2003). The plaintiff has now come to court seeking order to discharge that stay on the ground that the plaintiff’s advocate has not been made a joint holder of such account.
Upon reading the defendants affidavit there is the impression give that the defendant has deliberately misinterpreted the order of this court. The defendant was to deposit the money by a certain date. He did not do so. He did not apply for extension of time. He therefore creates excuses for this failure. The defendant wants his legal assistant to be added as a party to operate the account. This was not ordered by court. The defendant tries to exonerate himself by saying that the advocate for the plaintiff was incorporative. I have read the application and the affidavits in support. The advocate for plaintiff is on his right to object to the proposed operation of the account. I have come to the conclusion that the defendant has deliberately chosen to defy court order and l hereby allow the application and grant order as prayed for with costs
J. KHAMINWA
JUDGE
25. 6.04
Mr. Odoch.
Mrs. Olwende
Ruling read in their presence.
J. KHAMINWA
JUDGE
Mr. Adoch – I apply for certified copies of proceedings and ruling.
Court – Let the same be supplied.
I apply for stay pending appeal.
Court – Advocate to file a formal application with the next 7 days. Stay is granted for that ground.
J.KHAMINWA
JUDGE