[2005] KEHC 932 (KLR)
The court found that the judgment against the Defendant was lawfully entered and had not been appealed. The Plaintiff is entitled to execute the judgment, and the Defendant's belief that the Third Party is liable does not justify staying execution or setting aside the judgment. Furthermore, the application was filed...
Source-derived case information.
- Citation
- [2005] KEHC 932 (KLR)
- Parties
- Plaintiff: Kenya Finance Corporation; Defendant: Eshiban Kiarie Gitau; Third Party: Nyaga Njamumo
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 3467 of 1985
- Procedural Posture
- Civil Suit / Ruling on Application to Stay Execution and Set Aside Judgment
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Stay of Execution, Setting Aside Judgment, Delay in Prosecution, Third Party Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Finance Corporation
Plaintiff
Eshiban Kiarie Gitau
Defendant
Nyaga Njamumo
Third Party
Procedural Posture
Civil Suit / Ruling on Application to Stay Execution and Set Aside Judgment
Legal Issues
- 1 Whether the court should stay execution of the judgment against the Defendant pending determination of liability of the Third Party.
- 2 Whether the judgment against the Defendant should be set aside and entered against the Third Party instead.
- 3 Whether the delay in prosecuting the application is excusable.
Ratio Decidendi
The court found that the judgment against the Defendant was lawfully entered and had not been appealed. The Plaintiff is entitled to execute the judgment, and the Defendant's belief that the Third Party is liable does not justify staying execution or setting aside the judgment. Furthermore, the application was filed after an inordinate and unexplained delay, which the court found inexcusable. Therefore, the application lacked merit and was dismissed with costs to the Respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application dated 28th June, 2002 is dismissed with costs to the Respondent.
Full Case Text
Judgment text and source record
9 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYAAT NAIROBICivil Suit 3467 of 1985KENYA FINANCE CORPORATION ……….………………….………. PLAINTIFFVERSUS
ESHIBAN KIARIE GITAU …………………………………..……….. DEFENDANTNYAGA NJAMUMO …………………………..……………….…….. THIRD PARTYRULING
In this application dated 28th June, 2002, filed initially under a certificate of urgency, the Applicant seeks, among other things, to stay execution of the order issued on 7th June, 2002 and to set aside judgment against the Defendant “and to enter the same against the Third Party”.
The Judgment against the Defendant was entered lawfully, and has not been appealed against. The Plaintiff is entitled to the fruits of that Judgment, and only because the Defendant believes that the Third Party is responsible and obligated to settle the judgment debt, is not reason enough to deny the Plaintiff his right of execution against the Defendant. In any event, I have not seen any evidence of a Judgment entered against the Third Party.
Secondly, there has been an inordinate delay in prosecuting this application. This is an old 1985 case. Judgment was entered, and the decree issued on 13th March, 1988. This application was filed on 28th June, 2002, and despite it being filed under a certificate of urgency, it has not been prosecuted until now. None of this delay has been satisfactorily explained.
The Applicant is guilty of inordinate delay and, therefore, not deserving of this Court’s discretion. In any event, there is no basis to this application, and the same is dismissed with costs to the Respondent.Dated and delivered at Nairobi this 6th day of December, 2005.
ALNASHIR VISRAM
JUDGE