[2013] KEHC 5496 (KLR)
The court found that it had dismissed the applicant's earlier Notice of Motion on 5/7/2013 and did not issue any substantive order capable of being stayed. Without a notice of appeal or an order to stay, the court lacked jurisdiction to grant the relief sought. The applicant's repeated filings, instead of pursuing...
Source-derived case information.
- Citation
- [2013] KEHC 5496 (KLR)
- Parties
- Plaintiff: Michael Njuguna t/a Njuakim Commercial Agencies; Defendant: Equity Bank Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 6 of 2013
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Intended Appeal
- Outcome
- application dismissed
- Judges
- LN Gacheru
- Legal Topics
- Stay of Execution, Injunctive Relief, Jurisdiction of Court, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Njuguna t/a Njuakim Commercial Agencies
Plaintiff
Equity Bank Ltd
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Intended Appeal
Legal Issues
- 1 Whether the court has jurisdiction to grant a stay of execution where no substantive order was issued in the previous ruling.
- 2 Whether the applicant has demonstrated an arguable appeal to justify the grant of stay.
- 3 Whether the application amounts to an abuse of the court process.
Ratio Decidendi
The court found that it had dismissed the applicant's earlier Notice of Motion on 5/7/2013 and did not issue any substantive order capable of being stayed. Without a notice of appeal or an order to stay, the court lacked jurisdiction to grant the relief sought. The applicant's repeated filings, instead of pursuing an appeal, constituted an abuse of the court process. Consequently, the application for stay was dismissed as there was nothing to stay and the proper forum for any further relief was the Court of Appeal.
Court Disposition
application dismissed
Orders
- Notice of Motion dated 26/7/2013 is hereby dismissed.
- Costs in the cause.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
ELC NO. 6 OF 2013
MICHAEL NJUGUNA T/A
NJUAKIM COMMERCIAL AGENCIES .....................PLAINTIFF
VERSUS
EQUITY BANK LTD...........................................DEFENDANT
RULING:
The Applicant herein filed an application dated 1/3/2013 seeking for Injunctive Orders. The said Notice of Motion was canvassed by Written Submissions and a Ruling was issued by this Court on 5/7/2013.
Subsequently, the applicant again filed a Notice of Motion dated 16th July, 2013 seeking for Conditional Stay for 30 days of the Court’s Ruling and Orders issued on 5/7/2013. The said Notice of Motion was set for hearing on 24/7/2013. On 24/7/2013, the Court ordered parties to put in Written Submission and appear in Court on 9/8/2013, for further Orders.
But instead of putting in written submissions, the applicant filed the instant application dated 26/7/2013 and abandoned the earlier application dated 16/7/2013.
In the instant application, the applicant has sought for stay of execution of the Orders made by the Court on 5th July, 2013 pending the hearing and determination of an intended appeal. The applicant stated that, he has an arguable appeal and the application is made for the interest of justice and equity.
The application is opposed.The Respondent filed their grounds of opposition and averred that this Court has no jurisdiction to granting the Order of stay sought by the Applicant. That the Court did not issue any Order on 5/7/2013 and therefore, there exists no Order capable of being stayed. That further, there is no Notice of Appeal lodged to justify the Orders sought.
The applicant has sought to stay the Orders issued by the Court on 5/7/2013. On 5/7/2013, the Court found that, the applicant’s Notice of Motion dated 1/3/2013 did not have merit and the same was dismissed. The Court dismissed the Notice of Motion and did not issue any Order capable of being stayed.
The applicant has not attached his Notice of intended appeal and thus, Court cannot find with certainty that, he has an arguable appeal. The applicant is asking the Court to grant what it had already dismissed. The applicant herein should have filed his Notice of Appeal with an application for Injunction at the Court of Appeal.
Though applicant filed a letter of undertaking, that he would pay about Kshs.1. 2 Million by the end of the day today to the Respondent, he had all the time to make good that undertaking from 5/7/2013 todate. Instead he has been filing several applications in this Court instead of lodging an appeal. That amount to abuse of the Court’s process.
The Court finds that it has nothing to stay herein as the Court only dismissed an application on 5/7/2013 but did not make, or issue any Order capable of being stayed.Notice of Motion dated 26/7/2013 is hereby dismissed. Costs in the Cause.
Dated, Signed and delivered this 5TH day of July, 2013.
L N GACHERU
JUDGE
Okemwa for the Applicant
Wanjohi for the Respondent
Anne Court Clerk
Court:
Ruling Read in Chamber in the presence of Mr Okemwa for the Applicant and Wanjohi for the Respondent.
L .N. GACHERU
JUDGE