[2013] KEHC 1089 (KLR)
The court found that the application for stay of execution was not properly before it due to non-compliance with Order 9 Rule 9 of the Civil Procedure Rules, as the applicant had not obtained the necessary order or consent for change of advocate after judgment. Furthermore, the only executable part of the judgment...
Source-derived case information.
- Citation
- [2013] KEHC 1089 (KLR)
- Parties
- Applicant: Japheth Barua Kirori; Applicant: Holly Redeemed Apostolic Ministries International; Respondent: Jonathan Wabala; Respondent: New Spring of Life Gospel Ministries Busia (K)
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Civil Case 41 of 2011
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Stay of Execution, Costs Taxation, Change of Advocate, Procedural Irregularities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Japheth Barua Kirori
Applicant
Holly Redeemed Apostolic Ministries International
Applicant
Jonathan Wabala
Respondent
New Spring of Life Gospel Ministries Busia (K)
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the court should grant a stay of execution pending appeal after dismissal of the suit.
- 2 Whether the application for stay was properly before the court given non-compliance with Order 9 Rule 9 of the Civil Procedure Rules.
- 3 Whether execution for costs can be stayed before taxation or agreement on costs.
Ratio Decidendi
The court found that the application for stay of execution was not properly before it due to non-compliance with Order 9 Rule 9 of the Civil Procedure Rules, as the applicant had not obtained the necessary order or consent for change of advocate after judgment. Furthermore, the only executable part of the judgment was for costs, which had not yet been taxed or agreed upon, and thus execution could not commence. The applicant also failed to demonstrate that payment of costs would render the intended appeal nugatory, as such costs could be recovered if the appeal succeeded. The application was therefore dismissed for lack of merit and procedural irregularity.
Court Disposition
application dismissed with costs
Orders
- The application dated 24.10.2013 is dismissed with costs.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA.
IN THE HIGH COURT OF KENYA AT BUSIA.
H. C. C. NO. 41 OF 2011.
1. JAPHETH BARUA KIRORI )
2. HOLLY REDEEMED APOSTOLIC )……………….. APPLICANTS.
MINISTRIES INTERNATIONAL )
VERSUS
1. JONATHAN WABALA ]
2. NEW SPRING OF LIFE GOSPEL ]
MINISTRIES BUSIA (K)………… ]………………..RESPONDENTS.
R U L I N G.
The Notice of Motion filed under certificate of urgency dated 24. 10. 2013 was filed by the 1st Plaintiff. It is for an order of stay of execution pending the hearing and determination of an appeal in respect of this court’s judgment of 16. 10. 2013. The application is indicated to be based on section 3 and 3A , Order 21 Rule 1 and 2 of the Civil Procedure Rules. It’s also supported by the 1st Plaintiff’s affidavit sworn on 24. 10. 2013.
The Defendants opposed the application and filed grounds of opposition through their counsel dated 28. 10. 2013, setting out three grounds.
The court has carefully considered the grounds set out in the supporting affidavit , grounds of opposition and submissions by both 1st plaintiff and counsel for the Defendants and find as follows;-
That Order 21 Rule 1 and 2 of the Civil Procedure Rules cited in the heading of the application by the 1st Plaintiff have no relevance to the current application as they relate to the reading of Judgment.
That section 3 and 3A of the (Civil Procedure Act) which 1st Plaintiff possibly referred to in the heading of the application deals with the special jurisdiction and inherent powers of the court.
That this article 159 (2) (d) of the Constitution obligates the court to ensure justice is administered without undue regard to procedural technicalities. The courts have also over time held that an application should be decided on its merit and substance, even where the wrong provisions of the law, or no provisions of the law under which the application is based, has been cited.
That the courts’ judgment of 16. 10. 2013 dismissed the Plaintiffs case with costs and therefore there is nothing this court can stay in respect of the order of dismissal of the case.
That the element of the court’s judgment of 16. 10. 2013 that is capable of being stayed, is the execution for costs. The record does not show that the taxation of costs has been commenced and finalized or that the costs have been agreed upon. The execution proceedings for costs cannot be commenced before the costs are agreed or taxed and decree on costs issued.
That the 1st applicant has not shown that the Defendants are persons of straw who cannot refund the money he will have paid as costs as a result of this court’s judgment of 16. 10. 2013 being executed and he thereafter succeeds on appeal.
That the payment of the costs in execution of the court’s judgment would not make the 1st Plaintiff’s intended appeal prejudiced or nugatory as the money paid can easily be recovered if he is successful on appeal.
That the application dated 24. 10. 2013 by the 1st Plaintiff was filed in contravention of the clear provisions of Order 9 Rule 9 of the Civil Procedure Rules which states;-
‘’ 9. When there is a change of advocate, or when a party decides to, act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the court-
Upon an application with notice to all the parties; or
Upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be.’’
M/S Elungata and company advocate came on record for the plaintiffs on 27. 2.2013, when they filed their notice to change of advocate. The court’s judgment was entered on 16. 10. 2013 and by the time the application of 24. 10. 2013 was filed, the above provision had not been complied. The 1st Plaintiff attempted to cure this problem by filing a notice to act in person dated 28. 10. 2013. The said notice is not signed by M/S.Elungata & company advocates to signal their consent, and was filed four days after the application.
The upshot of the foregoing is that the application dated 24. 10. 2013 has no merit and is dismissed with costs.
S. M. KIBUNJA,
JUDGE,
DATED AND DELIVERED ON 11th DAY OF NOVEMBER, 2013.
IN THE PRESENCE OF;
JUDGE