[2024] KEHC 387 (KLR)
The court found that the applicant had engaged in an abuse of the court process by filing a second application for stay of execution without disclosing the existence of a similar pending application. Despite this, the court exercised discretion not to strike out the matter but instead imposed stringent conditions...
Source-derived case information.
- Citation
- [2024] KEHC 387 (KLR)
- Parties
- Applicant: Kaisut Hardware; Respondent: Fredrick Farrah Kimani; Respondent: Blue Nile (East Africa) Limited
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application E145 of 2023
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution allowed on stringent conditions due to abuse of process.
- Judges
- TW Cherere
- Legal Topics
- Stay of Execution, Abuse of Court Process, Security for Decretal Sum
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kaisut Hardware
Applicant
Fredrick Farrah Kimani
Respondent
Blue Nile (East Africa) Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of judgment and decree in Meru CMCC 308 of 2019 pending appeal.
- 2 Whether the filing of a second similar application without disclosure constitutes abuse of court process.
- 3 What conditions should be imposed for the grant of stay of execution.
Ratio Decidendi
The court found that the applicant had engaged in an abuse of the court process by filing a second application for stay of execution without disclosing the existence of a similar pending application. Despite this, the court exercised discretion not to strike out the matter but instead imposed stringent conditions for the grant of stay. The court revised the temporary stay order, requiring the applicant to deposit the balance of the decretal sum within seven days, failing which the respondent would be at liberty to execute. The court emphasized the importance of candor and good faith in applications for discretionary relief and penalized the applicant by ordering it to bear its own costs.
Court Disposition
Application for stay of execution allowed on stringent conditions due to abuse of process.
Orders
- There shall be a stay of execution of judgment and decree in Meru CMCC 308 of 2019 upon the applicant depositing the balance of the decretal sum with the court within 7 days from the date of the ruling.
- The respondent will be at liberty to execute in the event that the applicant does not comply with the deposit order.
Full Case Text
Judgment text and source record
22 paragraphs
Kaisut Hardware v Kimani & another (Miscellaneous Civil Application E145 of 2023) [2024] KEHC 387 (KLR) (25 January 2024) (Ruling)
Neutral citation: [2024] KEHC 387 (KLR)
Republic of Kenya
In the High Court at Meru
Miscellaneous Civil Application E145 of 2023
TW Cherere, J
January 25, 2024
Between
Kaisut Hardware
Applicant
and
Fredrick Farrah Kimani
1st Respondent
Blue Nile (East Africa) Limited
2nd Respondent
Ruling
1. By a notice of motion dated 25th August, 2023, filed in HCCA E080 of 2023, Applicant and 2nd Respondent sought orders for stay of execution of judgment and decree in Meru CMCC 308 of 2019. On 30th November, 2023, this court directed the 1st Respondent to file his respondent and fixed the application for mention on 25th February, 2024 to take a ruling date.
2. While the application in HCCA E080 of 2023 is still pending, Applicant herein instructed another advocate who without disclosing the existence of the application pending in HCCA E080 of 2023 filed a similar application dated 20th December, 2023 seeking same orders as the ones in the pending application.
3. The court granted a temporary stay of execution of judgment and decree in Meru CMCC 308 of 2019 on condition that Applicant deposits ½ of the decretal sum in court. I notice that the Applicant has indeed deposited the security as ordered.
4. I am perturbed by the craftiness employed by the Applicant herein to obtain a favorable order in his favour the same having been denied in HCCA E080 of 2023.
5. I would have struck out this matter the Applicant is no doubt guilty of abusing the court process but I shall instead impose stringent conditions of stay as follows:1. The temporary order of stay of execution of judgment and decree in Meru CMCC 308 of 2019 issued on 20th December, 2023 is revised in the following terms:a.There shall be a stay of execution of judgment and decree in Meru CMCC 308 of 2019 upon the Applicant depositing the balance of the decretal sum with the court within 7 days from today’s dateb.Respondent will be at liberty to execute in the event that the Applicant does not comply2. Mention on 25th February, 2024 to confirm compliance with these orders and for direction concerning the disposal of the appeal.3. Applicant shall bear its costs
DATED IN MERU THIS 25TH DAY OF JANUARY 2024WAMAE. T.W. CHEREREJUDGEAppearancesCourt Assistant – Kinoti/MuneneFor Applicant - N/A for Muchoma Law AdvocatesFor Respondent – N/A for Munene, Wambugu & Kiplagat Advocates