[2023] KEHC 19967 (KLR)
The court found that the Defendants had failed to comply with the timelines for depositing the security sum as a condition for stay, only complying after an extension, and had repeatedly failed to attend court or prosecute their application regarding the disposed motor vehicle. The Defendants' conduct demonstrated a...
Source-derived case information.
- Citation
- [2023] KEHC 19967 (KLR)
- Parties
- Plaintiff: Elizabeth Mukami Kamau; Defendant: Stephen Nzue Mwanthi; Defendant: Joseph Kariuki Kweri
- Court
- High Court
- Court Station
- High Court at Kiambu
- Jurisdiction
- Kenya
- Case Number
- Civil Case E006 of 2021
- Procedural Posture
- Civil Case / Ruling on Application to Vacate Interim Stay and Release Deposited Sum
- Outcome
- Application allowed; interim stay orders vacated; deposited sum released to Plaintiff; Plaintiff at liberty to proceed with execution.
- Judges
- DO Chepkwony
- Legal Topics
- Interim Orders, Stay of Execution, Decretal Sum, Non Attendance, Execution Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elizabeth Mukami Kamau
Plaintiff
Stephen Nzue Mwanthi
Defendant
Joseph Kariuki Kweri
Defendant
Procedural Posture
Civil Case / Ruling on Application to Vacate Interim Stay and Release Deposited Sum
Legal Issues
- 1 Whether the interim orders of stay should be vacated due to non-compliance and non-attendance by the Defendants.
- 2 Whether the sum of Kshs 1,000,000 deposited as security should be released to the Plaintiff as part payment of the decretal sum.
- 3 Whether the Plaintiff should be allowed to proceed with execution proceedings.
Ratio Decidendi
The court found that the Defendants had failed to comply with the timelines for depositing the security sum as a condition for stay, only complying after an extension, and had repeatedly failed to attend court or prosecute their application regarding the disposed motor vehicle. The Defendants' conduct demonstrated a lack of diligence and an apparent intention to delay the proceedings while enjoying the benefit of interim stay orders. In the absence of any objection from the Defendants, and in the interest of justice and expeditious disposal of the matter, the court exercised its discretion to vacate the interim stay orders, order the release of the deposited sum to the Plaintiff as part...
Court Disposition
Application allowed; interim stay orders vacated; deposited sum released to Plaintiff; Plaintiff at liberty to proceed with execution.
Orders
- The interim orders of stay granted on July 15, 2022 are set aside and vacated.
- The sum of Kshs 1,000,000 deposited in court as security is to be released to the Plaintiff/Respondent as part payment of the decretal sum within seven days.
Full Case Text
Judgment text and source record
20 paragraphs
Kamau v Mwanthi & another (Civil Case E006 of 2021) [2023] KEHC 19967 (KLR) (27 June 2023) (Ruling)
Neutral citation: [2023] KEHC 19967 (KLR)
Republic of Kenya
In the High Court at Kiambu
Civil Case E006 of 2021
DO Chepkwony, J
June 27, 2023
Between
Elizabeth Mukami Kamau
Plaintiff
and
Stephen Nzue Mwanthi
1st Defendant
Joseph Kariuki Kweri
2nd Defendant
Ruling
1. This matter was scheduled for pre-trial directions today the date having been fixed in the absence of counsel for the parties herein. However, neither the Defendants nor their counsel attended court. They did not even send representation to explain their absence.
2. In the circumstances, the Plaintiff counsel sought to have the interim orders of stay granted herein to be vacated and or set aside and the deponed sum of Kshs 1,000,000/= to be released to the Plaintiff/Defendant or part of the decretal suit order. This is because according to the Plaintiff/Respondent’s counsel, the Applicants/Defendants had filed an application dated July 5, 2022 seeking for stay of Judgment and were issued the said orders on condition that they deposit a sum of Kshs 1,000,000/= in court, that they did not deposit the said sum within the timelines issued by court. They then filed for extension of the said timelines which order was granted and they which order was granted and they complied by September 19, 2022 when they sought to have a vehicle which had been held by the auctioneers released but were informed the same had already been disposed of. They were then directed by court to file a formal application in regard to the said motor vehicle, but to date they have not done so. It was pointed out that the Applicant/Defendant failed to attend court on September 19, 2022, December 13, 2022, April 17, 2022 and the date of this ruling. According to the Plaintiff’s counsel, the Defendants appear not be in a hurry to dispense of this matter as they are enjoying exparte interim orders of stay, which they have sat on for close to one (1) year. The Plaintiff /Respondent’s counsel then urged the court to vacate the interim orders of stay and instead order for the release of the sum deposited as part of the decretal sum. Counsel has also sought for the Plaintiff/Respondent to be allowed to proceed with the execution proceeding that had already commenced.
3. The Defendant and their counsel having failed to attend court, there is no objection to the prayers sought by the Plaintiff/Respondent’s counsel. The court thus proceeds to:-a.Set aside and to vacate the interim orders granted herein on July 15, 2022. b.Order that the sum of Kshs 1,000,000. 00 deposited to court or security to be released to the Plaintiff/Respondent or part payment of the decretal sum within seven (7) days from the date hereof.c.The Plaintiff/Respondent be at liberty to proceed with the execution process that already commenced herein.It is so ordered.
RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 27TH DAY OF JUNE, 2023. D. O. CHEPKWONYJUDGEIn the Presence of:Mwenda – Court AssistantMr. Mutongi counsel for Applicant/DefendantMs. Ngochi counsel for Plaintiff/Respondent