[2001] KEHC 591 (KLR)
The court held that it retains inherent jurisdiction to grant or extend stay orders even where procedural rules such as Order 41 Rule 4 do not expressly provide for such action, in order to protect its authority and ensure justice. The court found no compelling reason to require security in this instance, as the...
Source-derived case information.
- Citation
- [2001] KEHC 591 (KLR)
- Parties
- Plaintiff: Mrao Limited; Defendant: First American Bank; Defendant: Abdul Zahir Sheikh; Defendant: Andre Douglas Gregory
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 2 of ??
- Procedural Posture
- Civil Case / Ruling on Application for Extension of Ex Parte Stay Order
- Outcome
- application disallowed
- Judges
- AI Hayanga
- Legal Topics
- Stay of Execution, Inherent Jurisdiction, Security for Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mrao Limited
Plaintiff
First American Bank
Defendant
Abdul Zahir Sheikh
Defendant
Andre Douglas Gregory
Defendant
Procedural Posture
Civil Case / Ruling on Application for Extension of Ex Parte Stay Order
Legal Issues
- 1 Whether the court has jurisdiction to extend an ex parte stay order under Order 41 Rule 4 of the Civil Procedure Rules.
- 2 Whether security is required for the grant or extension of a stay order in the circumstances of this case.
Ratio Decidendi
The court held that it retains inherent jurisdiction to grant or extend stay orders even where procedural rules such as Order 41 Rule 4 do not expressly provide for such action, in order to protect its authority and ensure justice. The court found no compelling reason to require security in this instance, as the defendant was already in possession of the property in dispute and there was no risk of loss. Consequently, the application to set aside or refuse the extension of the ex parte stay order was disallowed.
Court Disposition
application disallowed
Orders
- The application for setting aside or refusing extension of the ex parte stay order is disallowed.
- No costs awarded to the plaintiff.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA CIVIL CASE NO.2 OF 2000
MRAO LIMITED………………………………………PLAINTIFF VERSUS FIRST AMERICAN BANK…………………………..1ST DEFENDANT ABDUL ZAHIR SHEIKH…………………………….2ND DEFENDANT ANDRE DOUGLAS GREGORY……………………..3RD DEFENDANT
R U L I N G
Mr. Okongo has argued on behalf of Mr. Dhanji Advocate that extension of exparte stay Order should not have been given in this case because under Order 41 Rule 4 of Civil Procedure rules there is no Jurisdiction. Besides, he said this is a case that required security as the Defendants have counter-claimed in the amount of KSh.100, 000/= but Mr. Wasuna opposed the application saying the Order was temporary and made under inherent Jurisdiction of the Court in view of the urgency. As for security he said there would be no need as the defendant is in possession of the property in dispute in the main suit. There is no danger that the Defendant will lose it.
I think this is a storm in a tea-cup. There is no doubt that a court may use its inherent Jurisdiction to fill in gas for where procedural rules do not exist so as to safeguard its judicial authority. There are few exceptions where an order given by Court should be left to be eroded or nullified by an act or any party where the court ought to safeguard it. I am not convinced that because Order 41 rule 4 does not provide for stay. The Curt cannot therefore in suitable case impose one. Secondly as concerns security I agree with Mr. Wasuna that the Defendant is sized of the security. There is no danger of loss in any event and I think requirement of security under Order 41 is actually clear.
I disallow the application with no costs to plaintiff. I would urge the parties to list the main application for substantive arguments immediately. The matter to proceed on 7th May 2001 as was set earlier.
DELIVERED THIS 9TH DAY OF MARCH 2001.
A.I. HAYANGA
J U D G E
Delivered to Mr. Wameyo
Delivered to Mr. Okongo in open Court.
A.I. HAYANGA
JUDGE
9/3/2001