[2008] KEHC 1183 (KLR)
The court found that the defendants failed to satisfy the requirements for review under Order XLIV of the Civil Procedure Rules, as they did not present any new matter or evidence that was not within their knowledge at the time the original order was made. The grounds advanced were merely a repetition of those...
Source-derived case information.
- Citation
- [2008] KEHC 1183 (KLR)
- Parties
- Plaintiff: M. N. Ng'ang'a; Plaintiff: Alex N. Thangei; Plaintiff: J. M. Thiga t/a Waruhiu K'Owade & Ng'ang'a Advocates; Defendant: Lab Construction Limited; Defendant: Lab Enterprises Limited; Defendant: Kisumu Concrete Products Limited; Defendant: Lalji Karsan Rabadia
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 554 of 2007
- Procedural Posture
- Civil Case / Ruling on Applications for Review and Stay of Execution
- Outcome
- applications dismissed with costs to the plaintiffs/respondents
- Judges
- CM Kariuki
- Legal Topics
- Review of Orders, Stay of Execution, Security for Judgment, Attachment of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
M. N. Ng'ang'a
Plaintiff
Alex N. Thangei
Plaintiff
J. M. Thiga t/a Waruhiu K'Owade & Ng'ang'a Advocates
Plaintiff
Lab Construction Limited
Defendant
Lab Enterprises Limited
Defendant
Kisumu Concrete Products Limited
Defendant
Lalji Karsan Rabadia
Defendant
Procedural Posture
Civil Case / Ruling on Applications for Review and Stay of Execution
Legal Issues
- 1 Whether the defendants have established grounds for review of the court's order requiring payment into court.
- 2 Whether the defendants are entitled to a stay of sale of their attached motor vehicles based on subsisting court orders.
Ratio Decidendi
The court found that the defendants failed to satisfy the requirements for review under Order XLIV of the Civil Procedure Rules, as they did not present any new matter or evidence that was not within their knowledge at the time the original order was made. The grounds advanced were merely a repetition of those previously considered and rejected. Additionally, the defendants did not provide evidence to support their claim of financial hardship, nor did they explain why the bond offered as security could not be used to secure the required funds. Regarding the application for stay of sale of the attached motor vehicles, the court determined that the orders relied upon by the defendants had...
Court Disposition
applications dismissed with costs to the plaintiffs/respondents
Orders
- The Notice of Motion filed on 10th June 2008 is dismissed with costs to the plaintiffs/respondents.
- The Notice of Motion filed on 8th October 2008 is dismissed with costs to the plaintiffs/respondents.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL CASE 554 OF 2007
M. N. NG’ANG’A
ALEX N. THANGEI
J. M. THIGA t/a WARUHIU K’OWADE &
NG’ANG’A ADVOCATES ........................………… PLAINTIFFS/RESPONDENTS
VERSUS
LAB CONSTRUCTION LIMITED….....….……..… 1ST DEFENDANT/APPLICANT
LAB ENTERPRISES LIMITED……......…..…….... 2ND DEFENDANT/APPLICANT
KISUMU CONCRETE PRODUCTSLIMITED …..3RD DEFENDANT/APPLICANT
LALJI KARSAN RABADIA ………….......…….…... 4TH DEFENDANT/APPLICANT
RULING
(1) In the notice of Motion filed on the 10th June 2008, the Defendants have sought a review of the Orders I made on the 13th May 2008 that the Defendants do pay the sum of Kshs.3,138,174/30 into court within fourteen (14) days of the date of the Order.
(2) The application is based on the grounds that owing to prevailing economic circumstances, the Defendant’s business is low. These grounds are reiterated in the supporting affidavit of Lalji Rabadia the 4th Defendant and Director of the other Defendants.
(3) The application must fail for a number of reasons which include:-
a)The provisions of Order XLIV of the Civil Procedure Rules on Review require the Defendants to show the existence of a new matter or evidence which were not within their knowledge when the application for stay was made. They have not established this but merely reiterated the same grounds upon which their application for stay was made.
b)The Defendants have not shown why they cannot use the Bond they offer as security to secure funds from a Bank or other institution for depositing to court as required in my order.
c)There is no evidence by way of accounts or otherwise to support the averment that the business of the Defendants was affected by the post election violence – that position was in any event subsisting when I made my order on the 13th May 2008 and was taken into account on the basis of the evidence the Defendants availed to the court at the time.
Accordingly, the Notice of Motion filed on the 10th June 2008 be and is hereby dismissed with costs to the Plaintiffs/Respondents.
(4) On the Notice of Motion filed on the 8th October 2008, the Defendants seek a stay of sale of their motor vehicles on the basis that as at the 3rd October 2008 when the attachment was made, there were orders of the court subsisting.
(5) Having perused the court record, it is clear that the court of its own motion extended certain orders on the 23rd June 2008 “to the next hearing date of the motion” dated the 10th June 2008. The Defendants fixed such motion for the 16th September 2008 but when the same came up for hearing before Lesiit, J on that day, no orders were extended. The orders accordingly lapsed and are no longer subsisting nor were they in force when the attachment was made.
(6) Accordingly, the application also failed and it be and is hereby dismissed with costs to the Plaintiff/Respondent.
Dated and delivered in open court this Fourteenth day of October, 2008 at 12. 45 p.m. in the presence of both learned counsel.
P. Kihara Kariuki
Judge.