[2005] KEHC 291 (KLR)
The court found that the adjournment of the hearing on 21st September 2005 was not attributable to either party but was due to the court's workload. The interim orders of stay had been granted to preserve the subject matter pending the hearing of the application dated 7th July 2003. To avoid rendering that...
Source-derived case information.
- Citation
- [2005] KEHC 291 (KLR)
- Parties
- Applicant: Jassan Kiptoo Kosgei t/a Tachasis Wholesalers; Respondent: National Bank of Kenya Ltd
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Case 59 of 2000
- Procedural Posture
- Civil Case / Ruling on Chamber Summons for Reinstatement of Interim Orders
- Outcome
- Interim stay orders reinstated pending hearing of the application dated 7th July 2003.
- Legal Topics
- Interim Orders, Stay of Sale, Adjournment, Review of Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jassan Kiptoo Kosgei t/a Tachasis Wholesalers
Applicant
National Bank of Kenya Ltd
Respondent
Procedural Posture
Civil Case / Ruling on Chamber Summons for Reinstatement of Interim Orders
Legal Issues
- 1 Whether the interim orders of stay granted on 9th June 2005 should be reinstated pending the hearing of the application dated 7th July 2003.
- 2 Whether the adjournment of the hearing on 21st September 2005, due to court workload, justifies reinstatement of the interim orders.
Ratio Decidendi
The court found that the adjournment of the hearing on 21st September 2005 was not attributable to either party but was due to the court's workload. The interim orders of stay had been granted to preserve the subject matter pending the hearing of the application dated 7th July 2003. To avoid rendering that application nugatory, and in the interests of justice, the court held that it was justified to reinstate the interim stay orders against the sale until the application could be heard. The court fixed the hearing date for 15th March 2006 and directed that notice be issued to counsel for both parties.
Court Disposition
Interim stay orders reinstated pending hearing of the application dated 7th July 2003.
Orders
- The interim stay orders against the sale are reinstated until the hearing date of the application dated 7th July 2003.
- The application dated 7th July 2003 is fixed for hearing on 15th March 2006.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT ELDORET
Civil Case 59 of 2000
JASSAN KIPTOO KOSGEI T/ATAACHASIS WHOLESALERS ......... PLAINTIFFS/APPLICANTS
=VERSUS=
NATIONAL BANK OF KENYA LTD ……....................................……. DEFENDANT/RESPONDENT
RULING
I have considered the Chamber Summons dated 29th September,2005. It was filed by Katwa Kemboi Advocates on behalf of Jassan Kiptoo Kosgei t/a Tachasis Wholesalers. It is purported to be brought under section 3 and 3A of the Civil Procedure Act (cap 21) and Order 39 Civil Procedure Rules. The application seeks for two substantive orders:-
1. THAT Interim orders made on 30th April,2005 be reinstated pending the hearing and determination of the application dated 7th July,2003.
2. THAT an order do issue for the hearing and determination of the plaintiff’s application dated 7th July,2004 on priority basis.
The application came for hearing on 11/10/2005. Mr. Katwa for the applicant and Mr. Kuloba for the respondent made submissions before me. I have considered the submissions of Counsel for both parties, and the documents filed.
This court delivered a ruling on 9th June, 2005 in this matter. In that ruling, I erroneously referred to the application dated 7th July,2003 as an application dated 7th September 2003. That was a typographical error. That application was actually dated 7th July,2003. I fixed that application for hearing on 21st September,2005 and granted orders of stay of sale up to that date up to the 21/9/2005 which was the date of hearing of the application dated 7th July,2003.
On that day, i.e. 21st September, 2005 the matter could not be reached, as the matters listed for hearing were many. Both Counsels for the parties were present and ready to proceed with the hearing of the application. It was the workload of the court that made the application to be adjourned and not heard.
The fact that the application could not be heard on 21/09/2005 is not blamable on any of the parties. I gave the interim orders of stay in order to avoid a situation where the application dated 3rd July 2003 would be rendered nugatory. The Notice of motion dated 7th July,2003 is for review of the orders of this court made on 4th April, 2003.
In view of the above circumstances, I consider that this is a matter in which there is justification for me to reinstate the stay orders which I gave on 9th June 2005 and were effective up to 21st September,2005.
I therefore reinstate the stay orders against the sale, till the hearing date of the application dated 7th July,2003, which will be heard on 15th March, 2006. Notice to issue on Counsel for the parties for the hearing on 15/03/2006.
Dated at Eldoret this 20th day of December, 2005.
GEORGE DULU,
AG. Judge.
In the presence of:-