[2008] KEHC 2375 (KLR)
The court held that since no decree capable of execution had been issued following the judgment of 14th December, 2007, there was nothing upon which a stay of execution could operate. The judgment merely determined a single issue reserved by consent, and further steps towards settlement were to be conducted out of...
Source-derived case information.
- Citation
- [2008] KEHC 2375 (KLR)
- Parties
- Plaintiff: Linda Watiri Muriuki; Defendant: Neville Patrick Gibson Warren; Defendant: Daniel James Corry McVicker; Defendant: Hamish Wooler Keith; Defendant: Zulfikar H. Alibhai
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 611 of 2003
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs to the plaintiff
- Judges
- DW Mbuteti
- Legal Topics
- Stay of Execution, Partnership Disputes, Consent Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Linda Watiri Muriuki
Plaintiff
Neville Patrick Gibson Warren
Defendant
Daniel James Corry McVicker
Defendant
Hamish Wooler Keith
Defendant
Zulfikar H. Alibhai
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether a stay of execution of decree can be granted when no decree capable of execution has been issued.
- 2 Whether the application for stay would frustrate the out-of-court settlement process agreed upon by the parties.
Ratio Decidendi
The court held that since no decree capable of execution had been issued following the judgment of 14th December, 2007, there was nothing upon which a stay of execution could operate. The judgment merely determined a single issue reserved by consent, and further steps towards settlement were to be conducted out of court as per the consent order. Granting the stay sought would not only be legally baseless but would also frustrate the agreed process of out-of-court settlement. The application was therefore misconceived and lacked merit.
Court Disposition
application dismissed with costs to the plaintiff
Orders
- The application for stay of execution is dismissed with costs to the plaintiff.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
Civil Case 611 of 2003
LINDA WATIRI MURIUKI …………………............... PLAINTIFF
V E R S U S
NEVILLE PATRICK GIBSON WARREN
DANIEL JAMES CORRY McVICKER
HAMISH WOOLER KEITH
ZULFIKAR H. ALIBHAI
(All practising as Advocates under
the firm name of Daly & Figgis, Advocates).........DEFENDANTS
R U L I N G
The present application by the Defendants (by notice of motion dated 11th February, 2008) seeks stay of execution of decree pending appeal under Order 41, rule 4 of the Civil Procedure Rules (the Rules). But there is no decree yet, and none capable of execution can be issued upon the judgement dated and delivered on 14th December, 2007. By that judgement the court merely determined the single issue reserved for it by the consent order entered on 9th January, 2004. That single issue was,
”...whether the terms of the Partnership Deed dated 31st October, 1990 applied to the partnership between the Plaintiff and the Defendants”.
Upon that determination certain consequences would flow in accordance with the other terms of the consent order towards out-of-court settlement of the dispute between the parties. It is only after full settlement of the dispute in terms of the consent order that a decree capable of execution can then issue. That stage has not yet been reached.
The process of out-of-court resolution of the dispute chosen by the parties as per the aforesaid consent order would be frustrated by any order made upon the present application as sought. Such order would, in effect, not stay execution of any decree; as already pointed out, no decree capable of execution can issue upon the judgement of 14th December, 2007. The order would actually stay the further proceedings of out-of-court settlement agreed upon in the consent order of 9th January, 2004.
No order of stay of further proceedings has been sought; what is sought is stay of execution of decree. Even if stay of further proceedings had been sought, I would not grant the same because, as seen above, it would merely frustrate and obstruct the method of settlement of the dispute chosen by the parties themselves.
Having considered all matters placed before the court, I hold that the application is not only misconceived; it also lacks merit and must be refused. It is hereby dismissed with costs to the Plaintiff. It is so ordered.
DATED AND SIGNED AT NAIROBI THIS 20TH DAY OF JUNE 2008.
H.P.G. WAWERU
JUDGE
DELIVERED THIS 20TH DAY OF JUNE 2008