[2004] KEHC 2021 (KLR)
The court found that the plaintiff had not fully complied with the order requiring payment of taxed costs in Kitale H.C.C.C. No. 113 of 2001, as only Ksh. 102,500 had been paid out of the required Ksh. 131,315. Since the discharge of the stay of proceedings was expressly conditioned on full payment of these costs,...
Source-derived case information.
- Citation
- [2004] KEHC 2021 (KLR)
- Parties
- Plaintiff: Nabayi Multi-Purpose Co.; Defendant: Agricultural Finance Co. Ltd
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- ? 128 of 2001
- Procedural Posture
- Civil Suit / Ruling on Application to Set Aside Stay of Proceedings
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Stay of Proceedings, Payment of Costs, Setting Aside Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nabayi Multi-Purpose Co.
Plaintiff
Agricultural Finance Co. Ltd
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Set Aside Stay of Proceedings
Legal Issues
- 1 Whether the plaintiff has fully paid the taxed costs as ordered in Kitale H.C.C.C. No. 113 of 2001.
- 2 Whether the court should set aside or discharge the stay of proceedings order issued on 12th June 2002.
Ratio Decidendi
The court found that the plaintiff had not fully complied with the order requiring payment of taxed costs in Kitale H.C.C.C. No. 113 of 2001, as only Ksh. 102,500 had been paid out of the required Ksh. 131,315. Since the discharge of the stay of proceedings was expressly conditioned on full payment of these costs, and the applicant had not satisfied this condition, the court held it had no jurisdiction to discharge the order. The application to set aside or discharge the stay of proceedings was therefore dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The motion to set aside or discharge the stay of proceedings 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 BUNGOMA
CIVIL SUIT NO. 128 OF 2001
NABAYI MULTI-PURPOSE CO. …………….. PLAINTIFF
VS
AGRICULTURAL FINANCE CO. LTD ……………. DEFENDANT
R U L I N G
The plaintiff applicant moved this court pursuant to sections 3 and 3A of the Civil Procedure Act. The motion is supported by the affidavit of Risper Arunga sworn on 11th February 2004.
The only prayer sought is to have the orders issued on 12th June 2002 staying proceeding in this suit set aside and or discharged. The order would be set aside if it is shown that costs in Kitale H.C.C.C. No. 113 of 2001 have been paid. The order complained of is reproduced as follows:
“There be a stay of proceedings herein pending payment of the costs by the plaintiff in Kitale High Court Civil case No. 113 of 2001 Nabayi Multi -Purpose Co -operative Society Ltd VS A.F.C.”
It would appear costs was taxed at Ksh131,315/= as evidenced in the certificate of costs dated 27th May 2002.
The plaintiff submits that it has paid the taxed costs.
Acknowledgment receipts were annexed to the supporting affidavit of Risper Arunga.
The Respondent opposed the motion on the ground that the applicant has not complied with the court order. It is stated that the applicant has paid a sum of 87,500 leaving a balance of Ksh.43,815/= unpaid. The defendant relied on the affidavit of D.M. Tunje sworn on 1st March 2004.
To me this appears to be a simple matter. It is not disputed that costs arising from KITALE H.C.C. No 113 of 2001 was taxed at Ksh.131,315/= which must be paid to enable this court discharge the court orders of 12th June 2002.
I have carefully scrutinized the acknowledgment receipts issued by both Gillete Traders Auctioneers and court Procter and the firm of M/s Kalya & Co. Advocates. It is evident that the total amount remitted to the defendant is a sum of Ksh.102,500/=. Obviously this falls short of the taxed costs of Ksh.131,315/=.
I have already stated that the discharge of the order of 12th June 2002 is pegged on payment of costs. I find that the applicant has not fully complied with the aforesaid order. Consequently I have no jurisdiction to discharge the orders. The motion is ordered dismissed with costs to the Respondent.
DATED AND DELIVERED THIS 26th DAY OF March 2004
J.K. SERGON
JUDGE