[2018] KEHC 3589 (KLR)
The court found that the applicant failed to prosecute the application by not filing written submissions and did not demonstrate payment of the outstanding debt or provision of any security other than the motor vehicle subject to attachment. The court held that the applicant cannot be protected from fulfilling...
Source-derived case information.
- Citation
- [2018] KEHC 3589 (KLR)
- Parties
- Applicant: Nyambene Services Ltd; Respondent: Kenya Commercial Bank Ltd
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 15 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling
- Outcome
- application dismissed
- Legal Topics
- Stay of Execution, Contract Enforcement, Security for Debt
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nyambene Services Ltd
Applicant
Kenya Commercial Bank Ltd
Respondent
Procedural Posture
Miscellaneous Application / Ruling
Legal Issues
- 1 Whether the applicant is entitled to stay of attachment and sale of the motor vehicle pending determination of the application.
- 2 Whether the applicant has provided sufficient security or guarantee for the outstanding debt.
- 3 Whether failure to prosecute the application warrants dismissal.
Ratio Decidendi
The court found that the applicant failed to prosecute the application by not filing written submissions and did not demonstrate payment of the outstanding debt or provision of any security other than the motor vehicle subject to attachment. The court held that the applicant cannot be protected from fulfilling contractual obligations voluntarily entered into with the respondent. Consequently, the application for stay of attachment and sale was dismissed, and costs were awarded to the respondent.
Court Disposition
application dismissed
Orders
- The application for stay of attachment and sale is dismissed.
- Costs of the application are awarded to the respondent.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
MISC.CIVIL APPLICATION NO. 15 OF 2018
NYAMBENE SERVICES LTD...................................................PLAINTIFF
VERSUS
KENYA COMMERCIAL BANK LTD...............................RESPONDENT
RULING
The applicant herein by a notice of motion dated 7th February 2018 sought that the court issues stay orders against attachment and sale of Motor vehicle Registration KCE 422 N Scania Prime Mover and Trailer for 30 days pending the hearing and determination of the application.
The Respondents filed a reply to the application and directions were taken that application be canvassed by way of written submissions. The court urged parties to attempt out of court settlement but they didn’t reach an agreement.
The Respondent filed their submissions but the applicant did not file. The applicant had needed 30 days to settle balance of 2,417,030. 30 which fell due to be paid as at 26th January 2018. The applicant has failed to show that he has paid or that he has given any other guarantee and/or security to pay other than the Motor vehicle that he seeks order restraining attachment and sale. This court is of the view that the applicant has lost interest in the application and the same is dismissed.
The applicant cannot be protected from fulfilling terms of a contract he entered into with the Respondent on his own volition. Costs of application awarded to the Respondent.
HON. A.ONG’INJO
JUDGE
RULING, DELIVERED, DATED AND SIGNED IN COURT IN 26TH JULY 2018.
In the presence of:
C/A: Penina
Plaintiff: Applicant – N/A
Respondent: Respondent – N/A
HON. A.ONG’INJO
JUDGE
Mr Munene Advocate for Applicant - N/A
Ms Njeru Advocate for Respondent – N/A
Order
Dr to issue Notice of ruling to counsels and parties.
HON. A.ONG’INJO
JUDGE