[2007] KEHC 2336 (KLR)

[2007] KEHC 2336 (KLR)

The court held that the defendants failed to establish any of the statutory grounds for review under Order XLIV Rule 1(1) of the Civil Procedure Rules, as there was no discovery of new evidence, no error apparent on the face of the record, and no sufficient reason shown. The court further reasoned that the stay granted to the plaintiff was conditional upon depositing 50% of the taxed costs, and since the plaintiff failed to fulfill this condition, the stay of execution was no longer operative. The proper remedy for the defendants was to proceed with execution or to seek vacation of the stay order, not review. The application was therefore dismissed, but no order as to costs was made due...

Citation
[2007] KEHC 2336 (KLR)
Parties
Applicant: Jeremiah Ndirangu Gitonga; Respondent: James Ndumia Gitonga; Respondent: Munyeki Gitonga; Respondent: Mirichu Gitonga
Court
High Court
Court Station
High Court at Nyeri
Jurisdiction
Kenya
Judgment Date
29 June 2007
Case Number
Civil Case 228 of 1996
Procedural Posture
Chamber Summons / Ruling on Application for Review of Conditional Stay Order
Outcome
application dismissed
Judges
MM Kasango
Legal Topics
Review of Orders, Stay of Execution, Conditional Orders, Non Compliance With Court Orders
Source Language
English
Civil Procedure Review of Orders Stay of Execution Conditional Orders Non Compliance With Court Orders

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 2 Authorities cited 1 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Jeremiah Ndirangu Gitonga

Applicant

James Ndumia Gitonga

Respondent

Munyeki Gitonga

Respondent

Mirichu Gitonga

Respondent

Procedural Posture

Chamber Summons / Ruling on Application for Review of Conditional Stay Order

Legal Issues

  1. 1 Whether the defendants have established grounds for review of the conditional stay order granted on 24th November 2004.
  2. 2 Whether failure by the plaintiff to comply with the condition of depositing 50% of taxed costs warrants review or vacation of the stay order.
  3. 3 Whether the court is functus officio in respect of the stay order.

Ratio Decidendi

The court held that the defendants failed to establish any of the statutory grounds for review under Order XLIV Rule 1(1) of the Civil Procedure Rules, as there was no discovery of new evidence, no error apparent on the face of the record, and no sufficient reason shown. The court further reasoned that the stay granted to the plaintiff was conditional upon depositing 50% of the taxed costs, and since the plaintiff failed to fulfill this condition, the stay of execution was no longer operative. The proper remedy for the defendants was to proceed with execution or to seek vacation of the stay order, not review. The application was therefore dismissed, but no order as to costs was made due...

Court Disposition

application dismissed

Orders

  • The Chamber Summons dated 1st November 2006 is dismissed with no orders as to costs.
  • There is no stay of execution of the decree of costs of 1st October 2004 due to the plaintiff's failure to fulfill the condition of stay.