[2001] KEHC 626 (KLR)
The court found that the defendants had filed two similar applications in the same suit, both seeking a stay of execution and involving the same parties and reliefs. Section 6 of the Civil Procedure Act prohibits the court from proceeding with a matter where the issues are directly and substantially in issue in a...
Source-derived case information.
- Citation
- [2001] KEHC 626 (KLR)
- Parties
- Plaintiff: National Industrial Credit Bank Ltd.; Defendant: Come to Africa Safaris Ltd.; Defendant: Moses Owiti; Defendant: Berryl Ackel
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1582 of ??
- Procedural Posture
- Civil Case / Ruling on Chamber Summons for Stay of Execution
- Outcome
- application dismissed with costs
- Judges
- T Mbaluto
- Legal Topics
- Stay of Execution, Abuse of Process, Multiple Applications, Ex Parte Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
National Industrial Credit Bank Ltd.
Plaintiff
Come to Africa Safaris Ltd.
Defendant
Moses Owiti
Defendant
Berryl Ackel
Defendant
Procedural Posture
Civil Case / Ruling on Chamber Summons for Stay of Execution
Legal Issues
- 1 Whether the defendants are entitled to a stay of execution pending the hearing of an application to set aside ex parte judgment.
- 2 Whether filing multiple similar applications in the same suit is permissible under the Civil Procedure Act.
Ratio Decidendi
The court found that the defendants had filed two similar applications in the same suit, both seeking a stay of execution and involving the same parties and reliefs. Section 6 of the Civil Procedure Act prohibits the court from proceeding with a matter where the issues are directly and substantially in issue in a previously instituted proceeding between the same parties. The court held that the current application was incompetent and constituted an abuse of the court process. Consequently, the application was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The Chamber Summons application for stay of execution is dismissed with costs to the plaintiff.
Full Case Text
Judgment text and source record
8 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI COMMERCIAL COURTS CIVIL CASE NO. 1582 OF 2000
NATIONAL INDUSTRIAL CREDIT BANK LTD. ……… PLAINTIFF VERSUS COME TO AFRICA SAFARIS LTD. ……………….. 1ST DEFENDANT MOSES OWITI ………………………………………. 2ND DEFENDANT BERRYL ACKEL ……………………………………. 3RD DEFENDANT
RULING
The defendants herein have lodged this Chamber Summons application under O. XXI Rules 22 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act for a stay of execution of the decree in this matter pending the hearing of another application they had lodged on 15. 3.2001 to set aside an ex parte judgment entered by this court against them on 25. 1.2001. Prior to filing of the application, the same defendants had filed another application in this matter seeking similar orders. That application is still pending before this court. Section 6 of the Civil Procedure Act provides:-
“No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other cour t having jurisdiction in Kenya to grant the relief claimed.”
By virtue of those provisions the applicants are not entitled to bring in the same suit, two similar applications involving the same parties in which the same reliefs are sought. Accordingly, the application now before court is not only incompetent but also an abuse of the process of the court. It is for that reason dismissed with costs.
Dated at Nairobi this 18th day of April, 2001.
T. MBALUTO JUDGE