[2008] KEHC 3618 (KLR)
The court found that the applicant was guilty of inordinate delay in both seeking review and stay of execution, having brought the application more than a year after the orders complained of and having taken no steps to prosecute the appeal. The requirements for review under Order XLIV of the Civil Procedure Code...
Source-derived case information.
- Citation
- [2008] KEHC 3618 (KLR)
- Parties
- Appellant: Loise Ruguru Kimani; Respondent: Nelson Ndege Gatimu
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 16 of 2004
- Procedural Posture
- Civil Appeal / Ruling on Application for Review and Stay of Execution
- Outcome
- application dismissed with costs to respondent
- Legal Topics
- Review of Court Orders, Stay of Execution, Inordinate Delay, Abuse of Court Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Loise Ruguru Kimani
Appellant
Nelson Ndege Gatimu
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Review and Stay of Execution
Legal Issues
- 1 Whether the applicant is entitled to a review of the order dismissing the previous stay application.
- 2 Whether the applicant is entitled to an order of stay of execution of the decree.
- 3 Whether there has been inordinate delay in bringing the application for review and stay.
Ratio Decidendi
The court found that the applicant was guilty of inordinate delay in both seeking review and stay of execution, having brought the application more than a year after the orders complained of and having taken no steps to prosecute the appeal. The requirements for review under Order XLIV of the Civil Procedure Code were not met, as the order sought to be reviewed was not attached, no new or important matter was disclosed, no error apparent on the face of the record was shown, and no sufficient reason was advanced. The court further held that the application was an abuse of court process intended to delay the respondent from enjoying the fruits of a lawfully entered judgment. Consequently,...
Court Disposition
application dismissed with costs to respondent
Orders
- The application for review and stay of execution is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU Civil Appeal 16 of 2004
LOISE RUGURU KIMANI……………......………………APPELLANT
VERSUS
NELSON NDEGE GATIMU…………………………..RESPONDENT
RULING
Notice of Motion dated 28/11/2005 has been pending hearing until 11/12/2007. It is disclosed that prior to the filing this application the High Court (Justice Lenaola) had dismissed another application for stay. It is now sought to review that order of dismissal issued on 17/11/2004. Judgment was given on 16/3/2004.
I have considered the supporting and replying affidavits. The applicant says the decretal amount is approximately 700,000/= and the Respondent says that the Judgment was for Shs.424,800 out of which the applicant has never made any effort to pay any part. The record of Appeal was filed by Appellant) Applicant on 18/10/2005 but no steps have been taken by the Appellant to proceed to hearing of appeal.
It is my finding that there is inordinate delay on the part of the applicant and he does not deserve any orders of stay of execution of decree. Regarding the application for review it is also clear that the application was not made until after expiration of one year of the orders complained of. There is inordinate delay.
Upon perusing the grounds set down for review I find the requirements set down under Order LXIV CPC are not proved. Firstly the order upon which the review is sought is not drawn and attached to this application as demanded under Order 44 1 (1) CPC. Secondly no new and important matter now discovered is disclosed no mistake or error apparent on the face of record is disclosed and no sufficient reason is argued to warrant a review order. The issue of eviction was dealt with in the ruling dated 17/11/2004 together with other issues of substantial loss and security. It is clear the Applicant is guilty of inordinate delay in both cases and is not entitled to orders he seeks. It is also evident that the Applicant is bent on delaying the Respondent from enjoying the fruits of his lawfully entered Judgment which is an abuse of court process. The application has no merit and same is hereby dismissed with costs to respondent.
Dated this 12th February, 2008.
J. N. KHAMINWA
JUDGE
12/2/2008
Khaminwa – Judge
Njue – Clerk
Mr. Ndea for Kathungu
Respondent – present
Read in open court.
J. N. KHAMINWA
JUDGE