[2011] KEHC 435 (KLR)
The court found that the respondent had not complied with the order to deposit Ksh. 50,000 as directed by Mwera J, and there was no evidence of a new advocate coming on record with leave of court. The application for leave to pay the decretal sum by installments was not properly prosecuted, as the respondent failed...
Source-derived case information.
- Citation
- [2011] KEHC 435 (KLR)
- Parties
- Appellant: Johana Kamau Githongo; Respondent: David Wokabi Mureithi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 990 of 2005
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution and Leave to Pay Decretal Sum in Installments
- Outcome
- application dismissed with costs to the appellant
- Legal Topics
- Stay of Execution, Payment by Installments, Specific Performance, Loss of Use, Review of Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Johana Kamau Githongo
Appellant
David Wokabi Mureithi
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution and Leave to Pay Decretal Sum in Installments
Legal Issues
- 1 Whether the respondent is entitled to leave to pay the decretal sum by monthly installments.
- 2 Whether the application for stay of execution and payment by installments was properly before the court given the issue of representation by a new advocate.
- 3 Whether the respondent complied with the court's order to deposit Ksh. 50,000 to court as a condition for stay.
Ratio Decidendi
The court found that the respondent had not complied with the order to deposit Ksh. 50,000 as directed by Mwera J, and there was no evidence of a new advocate coming on record with leave of court. The application for leave to pay the decretal sum by installments was not properly prosecuted, as the respondent failed to set the matter down for hearing and did not attend court on the hearing date. The court held that in the interest of justice, and pursuant to Order 12 of the Civil Procedure Rules, the application dated 11th April 2011 should be dismissed with costs to the appellant. The respondent had not demonstrated sufficient grounds for the orders sought, nor complied with procedural...
Court Disposition
application dismissed with costs to the appellant
Orders
- The application dated 11th April 2011 is dismissed under Order 12 Civil Procedure Rules.
- Costs of the application are awarded to the appellant.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
CIVIL APPEAL NO. 990 OF 2005
JOHANA KAMAU GITHONGO................................................................APPELLANT/ORIGINAL PLAINTIFF
VERSUS
DAVID WOKABI MUREITHI..............................................................RESPONDENT/ORIGINAL DEFENDANT
(Being an appeal against the ruling made by the Chief Magistrate, C. Meoli in CMCC No. 2857 of 1999
Milimani Commercial Courts, Nairobi, dated 15th November 2005. )
R U L I N G
Leave to pay Decretal Sum in Installments
I.BACKGROUND
1. The respondent was sued in the subordinate court case in contract for sale of a motor vehicle registration KXJ 834 by agreement entered on 14th November 1997 between himself and the appellant.
2. The subordinate court granted orders of specific performance. In its judgment it failed to grant further orders that included loss of use of the motor vehicle. The appellant filed a review to the trial magistrate’s orders. This was dismissed.
3. The appellant appealed to the High Court. After hearing the appeal, the Hon. Judge varied the judgement and awarded
Ksh. 450,000/= as loss of user and costs. (28th June 2010).
4. On 11th April 2011, the respondent filed an application for stay of execution and leave to pay Ksh. 35,000/= per month.
5. This application came for hearing before Mwera J under certificate of urgency. The prayers were granted exparte and the said duty judge ordered that Ksh. 50,000/= be deposited to court. Dates be taken in the new term.
6. The appellant/respondent did not take dates in the new term. The appellant/respondent in the application took the dates of 26th September 2011, on 7th July 2011 in the registry. On 15th July 2011 he served the appellant/respondent with a hearing notice.
7. On the day called out for hearing, the applicant/respondent was absent. The respondent/appellant argued the application.
IIAPPLICATION 11TH APRIL 2011
8. The application was opposed on the grounds that a new advocate had come on record without leave of the court as required by law.
9. The appellant had failed to show the court of meeting criteria of providing security. The applicant respondent has financial resources.
IIIFINDINGS
10. I have perused this file, that was finalized by Okwengu J on the 28th June 2010 and note that there has been no new advocate who has come on record on behalf of the applicant/respondent.
11. It is further noted that the Ksh. 50,000/= ordered by Mwera J to be paid to court has never been paid.
12. The dates of this application had been set down for hearing by the other party. on failure by the applicant to do so.
13. In the interest of justice, the application dated 11th April 2011 is dismissed under Order 12 Civil Procedure Rules. Wherein, the respondent admits no claim of the application with costs to the respondent appellant.
Dated this 6th Day of October 2011 at Nairobi
M. A. ANG’AWA
JUDGE
Advocates:
iii)D.O. Okindo instructed by M/s Rumba Kinuthia & Co Advocates for the appellant/ original plaintiff
iv)A.L. Karim holding brief for M/s Ramesh Patel & Co Advocates for the respondent/original defendant