[2020] KEHC 5291 (KLR)
The court found that its previous order granting stay of execution was clear and required no further interpretation. The order required the applicant to pay 50% of the decretal sum to the respondent and deposit the balance in a joint interest earning account. The decretal sum, as per the trial court's judgment,...
Source-derived case information.
- Citation
- [2020] KEHC 5291 (KLR)
- Parties
- Applicant: Livingstone Musyoka; Respondent: Aphia Wambua
- Court
- High Court
- Court Station
- High Court at Kitui
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 96 ‘B’ of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Injunction and Clarification of Prior Stay Order
- Outcome
- application dismissed with costs to the respondent
- Judges
- LN Mutende
- Legal Topics
- Stay of Execution, Injunctive Relief, Interpretation of Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Livingstone Musyoka
Applicant
Aphia Wambua
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Injunction and Clarification of Prior Stay Order
Legal Issues
- 1 Whether the applicant is entitled to injunctive orders restraining execution of the decree in CMCC 116 of 2018.
- 2 Whether the court's ruling of 2nd October, 2019 requires clarification regarding inclusion of interest and costs in the amount to be deposited.
- 3 Whether the respondent is entitled to execute for interest and costs in addition to the principal sum.
Ratio Decidendi
The court found that its previous order granting stay of execution was clear and required no further interpretation. The order required the applicant to pay 50% of the decretal sum to the respondent and deposit the balance in a joint interest earning account. The decretal sum, as per the trial court's judgment, included the principal sum of Kshs. 700,000 plus costs. The applicant's argument that only the principal sum was to be considered was rejected. The court held that the application for injunctive orders and clarification was misconceived and unnecessary, as the terms of the stay order were specific and unambiguous. Consequently, the application was dismissed with costs to the...
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for injunctive orders and clarification is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KITUI
CIVIL MISC. APPLICATION NO. 96‘B’ OF 2019
(FORMERLY HCC.A 9 OF 2019)
LIVINGSTONE MUSYOKA...........................................................APPLICANT
VERSUS
APHIA WAMBUA........................................................................RESPONDENT
R U L I N G
1. The origin of this matter is that on the 16th January, 2019,the trial Court pronounced itself in its Judgment that was in favour of the Respondent. Being dissatisfied with the decision of the Court, the Applicant preferred an Appeal and filed an application for stay of execution. After consideration of the application, this Court allowed it on condition that the Applicant pays the Respondent 50%of the decretal sum and the balance (50%) to be deposited in a joint interest earning account in the names of the Advocates that were representing the parties.
2. The Applicant now seeks injunctive orders to issue restraining the Respondent from executing the decree or any part thereof issued in CMCC 116 of 2018, Kituior stay of further execution thereof.
3. Secondly, he seeks clarification and interpretation of the Court Ruling of 2nd October, 2019to the effect that the amounts payable be deposited in an interest earning bank account do not include any interest and costs.
4. The application is premised on grounds that the Appellant has fully complied with the conditions set by the Court for grant of stay of execution; the Respondent has misinterpreted the Ruling of the Court dated 2nd October, 2019by insisting that the Appellant should pay interest and costs and unless an order of stay is issued, the Respondent is likely to carry out an illegal execution of the decree in CMCC No. 116 of 2018.
5. In response thereto, the Respondent swore an affidavit where he deponed that the application that seeks an injunction is misconceived, brought out of ignorance of the law hence unnecessary in the proceedings. That the Ruling delivered on 2nd October, 2019was clear hence requires no interpretation. That the Applicant chose to pay and deposit the Judgment sum and therefore has not intended to comply with the Court order.
6. It is urged by the Applicant that at the time of the Ruling there was no decree hence the amount which was definite and which could form the basis of the application of the default clause was Kshs. 700,000/=that had been disclosed to the Court.
7. I have considered arguments of both parties.
8. The impugned order of this Court provides thus:
“In the premises, I grant stay of execution on condition that the Applicant pays the Respondent 50% of the decretal sum and the balance thereof to be deposited in an interest earning account in the names of the Advocates of both parties herein within fourteen (14) days.”
9. The stated figure that was disclosed to the Court as argued by the appellant, Kshs. 700,000/=was the principal sum stated in the Judgment of the trial Court.
10. A Judgment is a decision of a Court regarding rights and liabilities of parties in a legal action. The trial Court having considered the case before it reached a decision based on reasons that were given. It ruled thus:
“(4) I hereby order the defendant to pay Kshs. 700,000/= within 30 days.
(5) Costs of the suit to the Plaintiff.”
The Judgment thereof had to be translated into a decree so as to make it capable of execution.
11. The decretal sum is what is ultimately documented in the decree, which comprises the principle sum, interest, Court fees, disbursement and costs. In the instant case, per what the learned trial Magistrate pronounced, the decretal sum was the stated Kshs. 700,000/=plus costs.
12. To issue an injunctive order, a Court of law is required to balance the rights of a party to act in a certain manner. The order herein was made by the Court which was specific and required no interpretation. In the premises, the order sought is misconceived.
13. Accordingly, it is dismissed with costs to the Respondent.
14. It is so ordered.
Dated, Signed and Delivered electronically through Skype this 27th day of May, 2020.
L. N. MUTENDE
JUDGE