[2019] KEHC 367 (KLR)
The court held that section 23 of the Insolvency Act, 2015, is explicit that the power to stay execution lies with the court that issued the execution process, not the High Court. Since the execution process in question was issued by the Bomet Magistrates’ Court, only that court has jurisdiction to grant a stay of...
Source-derived case information.
- Citation
- [2019] KEHC 367 (KLR)
- Parties
- Applicant: James Mwangi Macharia; Respondent: Gerald Ochoki alias Marube
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Insolvency Cause E005 of 2019
- Procedural Posture
- Insolvency Cause / Ruling on Application for Stay of Execution
- Outcome
- Application struck out as incompetent.
- Judges
- DAS Majanja
- Legal Topics
- Insolvency Proceedings, Stay of Execution, Bankruptcy Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Mwangi Macharia
Applicant
Gerald Ochoki alias Marube
Respondent
Procedural Posture
Insolvency Cause / Ruling on Application for Stay of Execution
Legal Issues
- 1 Whether the High Court has jurisdiction under section 23 of the Insolvency Act to stay execution issued by a Magistrates’ Court.
- 2 Whether the applicant is entitled to a stay of execution pending determination of the insolvency cause.
Ratio Decidendi
The court held that section 23 of the Insolvency Act, 2015, is explicit that the power to stay execution lies with the court that issued the execution process, not the High Court. Since the execution process in question was issued by the Bomet Magistrates’ Court, only that court has jurisdiction to grant a stay of execution. The application before the High Court was therefore incompetent and could not be entertained. The applicant must seek relief from the issuing court, not the High Court.
Court Disposition
Application struck out as incompetent.
Orders
- The application is struck out.
Full Case Text
Judgment text and source record
29 paragraphs
IN THE HIGH COURT OF KENYA
AT NAIROBI
MILIMANI LAW COURTS
COMMERCIAL AND TAX DIVISION
CORAM: D. S. MAJANJA J.
INSOLVENCY CAUSE NO. E005 OF 2019
IN THE MATTER OF THE INSOLVENCY ACT
AND IN THE MATTER OF
JAMES MWANGI MACHARIA – A DEBTOR
BETWEEN
JAMES MWANGI MACHARIA.................................................APPLICANT/DEBTOR
AND
GERALD OCHOKI ALIAS MARUBE..............................RESPONDENT/CREDITOR
RULING
1. The Debtor has moved the court under section 23 of the Insolvency Act, 2015 (“the Act”) seeking an order that execution in respect of the judgment delivered in Bomet PMCC No. 61 of 2015, the resultant decree and all consequential orders be stayed pending hearing and determination of this cause.
2. It is not in dispute that the Debtor was sued by Gerald Ochoki alias Marube who obtained a decree in his favour in Bomet PMCC No. 61 of 2015 following his involvement in a road traffic accident while travelling in a vehicle belonging to the Debtor. As at 9th December 2016, the decretal amount was Kshs. 9,548,757. 00 which continues to accrue interest. At the time he filed this insolvency petition, he had received a notice to show cause why he should not be committed to civil jail for failing to satisfy the decree.
3. The Debtor has invoked section 23 of the Act which states as follows:
23(1) This section applies if an execution process has been issued by a court other than the High Court.
(2) If it is proved to the issuing court that an application for a bankruptcy order in respect of the debtor has been made to the High Court, that court may either –
(a) stay the execution on such terms as it considers appropriate; or
(b) permit the execution process to continue on such terms as it considers appropriate.
4. A plain reading of section 23 of the Act shows that the provision applies where the execution process is issued by any other court other than the High Court. Further, the court empowered to stay any execution is the court that issued the process hence the use of the phrase “issuing court”. In this case the execution process was issued by the Bomet Magistrates’ Court and it is to that court that the Debtor must look to for relief.
5. For the reasons I have set out this application is incompetent and is hereby struck out.
DATEDandDELIVEREDatNAIROBIthis19th day of DECEMBER 2019.
D. S. MAJANJA
JUDGE
Court Assistant: Mr M. Onyango
Mr Botany instructed by Lesinko Njoroge and Gathogo Company Advocates for the Debtor.
Mr Okemwa instructed by Okemwa Elijah and Company Advocates for the Creditor.