[2018] KEHC 9147 (KLR)
The court found that although the applicants failed to comply with previous orders to deposit security for the due performance of the decree, they have now indicated readiness to comply and have the cheque for the deposit ready. The court was not satisfied with the explanation for the delay but, in the interests of...
Source-derived case information.
- Citation
- [2018] KEHC 9147 (KLR)
- Parties
- Applicant: Kennedy Ongere; Applicant: Joseph Wambugu; Respondent: Antony Kinyanjui Kariuki; Respondent: Michael Mboyano; Respondent: Kenya Bus Services Management
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 237 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution and Extension of Time
- Outcome
- Application allowed conditionally.
- Judges
- BT Jaden
- Legal Topics
- Stay of Execution, Extension of Time, Security for Due Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kennedy Ongere
Applicant
Joseph Wambugu
Applicant
Antony Kinyanjui Kariuki
Respondent
Michael Mboyano
Respondent
Kenya Bus Services Management
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution and Extension of Time
Legal Issues
- 1 Whether the applicants have provided sufficient reason for the delay in complying with the court's orders for deposit of security.
- 2 Whether the applicants are entitled to a stay of execution of the judgment pending appeal.
- 3 Whether the application is res judicata or an abuse of court process.
Ratio Decidendi
The court found that although the applicants failed to comply with previous orders to deposit security for the due performance of the decree, they have now indicated readiness to comply and have the cheque for the deposit ready. The court was not satisfied with the explanation for the delay but, in the interests of justice and given the applicants' current willingness to comply, allowed the application for stay of execution on the strict condition that the deposit be made within 14 days. The court clarified that the stay only applies to the applicants' 20% share of liability and does not affect the co-defendants' 80% share. Costs of the application were awarded to the respondent.
Court Disposition
Application allowed conditionally.
Orders
- Stay of execution of the judgment and decree is granted pending appeal, on condition that the applicants deposit the decretal sum within 14 days.
- The stay of execution applies only to the applicants' 20% share of liability.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
CIVIL CASE MISC APPL. NO. 237 OF 2016
KENNEDY ONGERE..............................................1ST APPLICANT
JOSEPH WAMBUGU.............................................2ND APPLICANT
VERSUS
ANTONY KINYANJUI KARIUKI.....................1ST RESPONDENT
MICHAEL MBOYANO......................................2ND RESPONDENT
KENYA BUS SERVICES MANAGEMENT.....3RD RESPONDENT
RULING
1. The Application dated 7th February,2018 seeks orders:
1. Spent
2. Spent
3. That there be orders of stay of execution of the judgment and decree of this Honourable court, judgment delivered on 24th June 2016, pending the hearing and determination of Civil appeal No. 331 of 2017.
4. That time within which to comply with Orders issued on 30th November, 2017 be enlarged and/or that the be granted a further 14 days, or such other time as the court may specify, to comply with the orders granted.
2. The application is based on the grounds stated therein and is supported by the affidavit sworn by Stella Mathenge, advocate for the Applicant. It is stated that judgment was entered in the Lower Court on 8th March, 2016. That the Applicants were found 20% liable and ordered to pay Ksh. 323,305 as the decretal sum plus costs and interest. Subsequently, the Applicants were given leave to appeal out of time upon complying with the conditions given for stay of execution but the conditions were not complied with in time. The delay in complying with the conditions is blamed on the unavailability of the court file. It is stated that the cheque for the deposit of security is ready and that the Applicants are ready to comply with the court orders.
3. The Application is opposed. The 1st Respondent filed the grounds of opposition dated 19th February, 2018. The said grounds are as follows:
1. The original decree was given on 8th April, 2016. Appeal No. 331 of 2017 was filed on 29th June, 2016 hopelessly out of time. It was validated by order made on 19th October, 2016 on condition the decretal sum was deposited in a joint account in 30 days. There was no compliance. By another order made on 30th November, 2017 the applicants were granted another 30 days to comply with the earlier orders. There was no compliance. This matter is therefore res judicata. There is, also, abuse of court process.
2. The Applicants’ share of liability was only 20% by consent recorded in court which is Ksh.323,305/= yet they seek to stay execution of everything which is in bad faith.
3. There was no order to deposit the decretal sum in court and the entire application is misconceived.
4. I have considered the application, the response to the same and the submissions made by the counsels for the respective parties.
5. The orders for the deposit of security for the due performance of the decree were made on 19th October, 2017 and extended for a further 30 days on 30th November, 2017. However, the Applicants still failed to deposit the security. There is therefore no satisfactory explanation given for the delay. Be as it may, now that the cheque for the deposit of the security is said to be ready, I allow the application on condition that the said deposit be made within 14 days from the date hereof.
6. It is noted that there is no dispute that the Applicants were to shoulder 20% of liability. For the avoidance of doubt, the stay of execution herein only affects the Applicants and does not touch on their Co-Defendants 80% share of liability.
7. Costs of the application to the Respondent.
Dated, signed and delivered at Nairobi this 22nd day of May, 2018
B. THURANIRA JADEN
JUDGE