[2013] KEHC 3970 (KLR)
The court found that the applicant failed to demonstrate why a stay of execution was necessary, did not explain the delay of over nine months in bringing the application, and did not provide security as required by Order 42 Rule 6(2) of the Civil Procedure Rules. The court was not satisfied that the applicant would...
Source-derived case information.
- Citation
- [2013] KEHC 3970 (KLR)
- Parties
- Plaintiff: Mode Development Co. Limited; Defendant: Diplomatic Housing & Construction Co. Ltd.; Defendant: Balozi Housing Co-operation Society Ltd.; Defendant: Menelik Makonnen; Defendant: Samson Macharia Irungu; Defendant: Wilson Mutero; Defendant: Hudson Aluvanze
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 528 of 2009
- Procedural Posture
- Civil Case / Ruling on Notice of Motion for Stay of Execution and Setting Aside Orders
- Outcome
- application dismissed with costs to the plaintiff/respondent
- Judges
- DO Ogembo
- Legal Topics
- Stay of Execution, Review of Orders, Security for Costs, Delay in Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mode Development Co. Limited
Plaintiff
Diplomatic Housing & Construction Co. Ltd.
Defendant
Balozi Housing Co-operation Society Ltd.
Defendant
Menelik Makonnen
Defendant
Samson Macharia Irungu
Defendant
Wilson Mutero
Defendant
Hudson Aluvanze
Defendant
Procedural Posture
Civil Case / Ruling on Notice of Motion for Stay of Execution and Setting Aside Orders
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the partial decree and orders issued on 16th July 2012.
- 2 Whether the application for stay was made without unreasonable delay.
- 3 Whether the applicant has provided adequate security as required under Order 42 Rule 6 of the Civil Procedure Rules.
Ratio Decidendi
The court found that the applicant failed to demonstrate why a stay of execution was necessary, did not explain the delay of over nine months in bringing the application, and did not provide security as required by Order 42 Rule 6(2) of the Civil Procedure Rules. The court was not satisfied that the applicant would suffer substantial loss if the stay was not granted, especially considering the respondent's acquired rights under the judgment. Consequently, the application for stay of execution and setting aside of orders was dismissed in its entirety with costs to the plaintiff/respondent.
Court Disposition
application dismissed with costs to the plaintiff/respondent
Orders
- The Notice of Motion dated 17th September 2012 is dismissed in its entirety with costs to the plaintiff/respondent.
Full Case Text
Judgment text and source record
45 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
Civil Case 528 of 2009 [if !mso]> <style> v:* {behavior:url(#default#VML);} o:* {behavior:url(#default#VML);} w:* {behavior:url(#default#VML);} .shape {behavior:url(#default#VML);} </style> <![endif]
MODE DEVELOPMENT CO. LIMITED::::::::::::::::::::::::::::::::::::::::::::::::::::::::::PLAINTIFF
- VERSUS -
DIPLOMATIC HOUSING &
CONSTRUCTION CO. LTD.::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::1ST DEFENDANT
BALOZI HOUSING CO-OPERATION
SOCIETY LTD.::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::;:::::::::2ND DEFENDANT
AND
MENELIK MAKONNEN
SAMSON MACHARIA IRUNGU
WILSON MUTERO
HUDSON ALUVANZE:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::;:::::::::THIRD PARTIES
R U L I N G
1. The Notice of Motion dated 17th September 2012 seeks the following orders:-
1)That this application be heard ex-parte in the first instance on grounds of urgency.
2)That there be a stay of execution of the partial decree herein.
3)That the orders issued herein on 16th July 2012 be vacated, reviewed or otherwise set aside.
4)That the costs of this application be provided for.
2. The application is supported by affidavit of DR. MARY WAMBUI KIMANIdated 17th September 2012 with its annextures.
3. The application is opposed vide a replying affidavit of ERICK AGBEKO dated 21st September 2012.
4. The application seeks to stay execution of Judgement issued on 8th December 2011 and subsequent proceedings and consequences including orders issued on 16th July 2012.
5. On 16th July 2012 this court issued a prohibitory order over L.R. No. 12422/600 (I.R. 88318) registered in the name of the 2nd Defendant and allowed the Plaintiff to execute for the partial Judgement forthwith. It is this order which is sought to be stayed.
6. However, the Applicant has not stated why the stay is necessary. It could be that they intend to appeal. If that is so it should also be explained why there has been a delay for more than 9 months before this application was filed.
Under Order 42 Rule (6) of the Civil Procedure Rules this court has the power to grant a stay of execution if the conditions under that order are complied with. The conditions under Order 42 (6) (2) are:-
Where the court is satisfied that substantial loss may result to the Applicant unless the order is made and that the application has been made without unreasonable delay.
Where adequate security has been provided by the Applicant.
7. The Respondent has opposed this application and on grounds that it has been brought after unexplained delay and that the Applicant has provided no security which is a requirement under the law. I agree with the Respondent. Further, in my view I am satisfied that the Applicant will suffer no loss if I do not allow the application. Any loss which may be suffered by the Applicant should the Respondent execute the Judgement must also be considered in the light of the fact that the Respondent has also acquired a right arising from the said Judgement. It therefore follows that as long as the Applicant is not prepared to provide security to the Respondent, the Respondent should also not be duly taken in by the loss that the Applicant may suffer should the Respondent execute the Judgement.
8. I am not convinced that the Notice of Motion application dated 17th September 2012 is merited. I dismiss it in its entirety with costs to the Plaintiff/Respondent.
It is so ordered.
DATED, READ AND DELIVERED AT NAIROBI
THIS 25TH DAY OF APRIL 2013
E. K. O. OGOLA
JUDGE
PRESENT:
Njuguna for the Plaintiff
Onyango holding brief for Nyakundi for the Defendants
Osiemo for the 3rd Parties
Teresia – Court Clerk
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