[2008] KEHC 2625 (KLR)
The court found that the applicant had not filed an appeal against the judgment delivered on 30th May 2007 and had not specifically sought a stay of execution pending appeal. The request for the unconditional release of the attached property was viewed as an attempt to frustrate the execution process rather than a...
Source-derived case information.
- Citation
- [2008] KEHC 2625 (KLR)
- Parties
- Plaintiff: Joseph Konzollo Munyao; Defendant: The Standard Newspapers Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 917 of 2003
- Procedural Posture
- Civil Suit / Ruling on Chamber Summons
- Outcome
- application dismissed with costs to the respondent
- Judges
- JM Khamoni
- Legal Topics
- Stay of Execution, Warrants of Attachment, Release of Attached Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Konzollo Munyao
Plaintiff
The Standard Newspapers Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Chamber Summons
Legal Issues
- 1 Whether the applicant is entitled to the unconditional release of the proclaimed and attached property.
- 2 Whether the applicant is entitled to any other relief or order as deemed necessary by the court.
- 3 Whether the applicant is entitled to costs of the application.
Ratio Decidendi
The court found that the applicant had not filed an appeal against the judgment delivered on 30th May 2007 and had not specifically sought a stay of execution pending appeal. The request for the unconditional release of the attached property was viewed as an attempt to frustrate the execution process rather than a legitimate application for relief. The court held that a general prayer for any other relief could not substitute for a specific prayer for stay of execution, and that the applicant's failure to act within the prescribed timelines or to demonstrate incapacity to pay the decretal sum undermined the application. Consequently, the court dismissed the application with costs to the...
Court Disposition
application dismissed with costs to the respondent
Orders
- The Chamber Summons dated 18th January 2008 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Suit 917 of 2003
JOSEPH KONZOLLO MUNYAO……………...…PLAINTIFF/RESPONENT
VERSUS
THE STANDARD NEWSPAPERS LIMITED……DEFENDANT/APPLICANT
RULING
The Applicant in this Chamber Summons dated 18th January 2008 has told me through its learned counsel, Mr. Billing, that they want prayers 3,6 and 7 only. Prayer number 3 states as follows:
“The proclaimed and attached motor vehicle registration number KAX 691C, office desks, computers, telephone heads, reception desks and office chairs be released to the applicant unconditionally.”
Prayer number 6 says that the Court grants
“Any other relief or order that this Court may deem necessary or just.”
Prayer number 7 is for costs of this application.
It means the Applicant had been granted prayers 1, 2,4 and 5 in the said Chamber Summons. That is the certification of this application urgent, interim order of stay of execution pending hearing and final determination of this application, stay of the execution of the warrants of attachment and sale pending hearing and final determination of this application and the obtaining of the interpartes hearing date for this application.
As can be seen therefore, the Applicant did not want an order for a stay of execution on the decree passed on 30th May 2007 pending the hearing and determination of an appeal there from and indeed the Applicant has not told me during the hearing that he has filed an appeal which is pending to be heard. A specific prayer in those terms is so important that an applicant cannot afford to hide under a general and vague prayer like prayer number six (6) and expect the Court to grant him a specific prayer allowing him a stay of execution until the hearing and determination of his appeal.
In the circumstances therefore, what is the purpose of prayer number 3? If those things are already proclaimed and attached, I cannot see any purpose of prayer 3 other than completely frustrating the execution complained of. The Judgment being executed was passed on 30th May 2007. The Applicant has failed to pay the decrettal sum for reasons other than the Applicant’s incapability or inability to pay the money. To-date no appeal has been filed as the time is too long to rely on a mere notice to appeal in this matter where typed copies of the Judgment were available to the parties right from the very date the Judgment was delivered.
The above being the position, I look at the grounds and reasons given by the Applicant to support this application as grounds and reasons to blind me from seeing the Applicant’s black side in the application and therefore have no problem in rejecting all those grounds and reasons in preference to what Counsel for the Respondent said, with the totality – (that is what counsel for Respondent said, plus what I have added) – leading me to the rejection of the Applicant’s application.
Accordingly this Chamber Summons is hereby dismissed with costs to the Respondent.
Dated and Delivered at Nairobi this 7th day of March 2008.
J.M. KHAMONI
JUDGE