[2024] KEHC 6434 (KLR)
The court found that the application for review dated 28th November 2022 had been reinstated and was pending determination, with parties directed to dispose of it by way of written submissions. There was no opposition to the present application for stay of execution and setting aside of warrants of attachment. In...
Source-derived case information.
- Citation
- [2024] KEHC 6434 (KLR)
- Parties
- Applicant: O.M Robinson & Co Advocates; Respondent: Liya M.E Contractors Limited; Objector: Liya Motors Limited
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Case E006 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution and Setting Aside Warrants of Attachment
- Outcome
- Application allowed in terms of prayers 2 and 3; costs in the cause.
- Judges
- SM Githinji
- Legal Topics
- Stay of Execution, Setting Aside Warrants, Review of Judgment, Warrants of Attachment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
O.M Robinson & Co Advocates
Applicant
Liya M.E Contractors Limited
Respondent
Liya Motors Limited
Objector
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution and Setting Aside Warrants of Attachment
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the judgment and/or decree made on 20th September 2022 pending determination of the application for review.
- 2 Whether the warrants of attachment issued on 18th April 2024 should be set aside pending the hearing and determination of the application dated 28th November 2022.
Ratio Decidendi
The court found that the application for review dated 28th November 2022 had been reinstated and was pending determination, with parties directed to dispose of it by way of written submissions. There was no opposition to the present application for stay of execution and setting aside of warrants of attachment. In the absence of any response and given the pending status of the review application, the court determined that it was just to grant the stay of execution and set aside the warrants of attachment to preserve the subject matter until the review application is heard and determined. The court therefore allowed the application in terms of prayers 2 and 3, with costs in the cause.
Court Disposition
Application allowed in terms of prayers 2 and 3; costs in the cause.
Orders
- Stay of execution of the judgment and/or decree made on 20th September 2022 is granted pending hearing and determination of the application dated 28th November 2022.
- Warrants of attachment issued on 18th April 2024 are set aside pending hearing and determination of the application dated 28th November 2022.
Full Case Text
Judgment text and source record
20 paragraphs
O.M Robinson & Co Advocates v Liya M.E Contractors Limited; Liya Motors Limited (Objector) (Miscellaneous Case E006 of 2021) [2024] KEHC 6434 (KLR) (5 June 2024) (Ruling)
Neutral citation: [2024] KEHC 6434 (KLR)
Republic of Kenya
In the High Court at Malindi
Miscellaneous Case E006 of 2021
SM Githinji, J
June 5, 2024
Between
O.M Robinson & Co Advocates
Applicant
and
Liya M.E Contractors Limited
Respondent
and
Liya Motors Limited
Objector
Ruling
1. Spent.2. That pending the hearing and determination of this application, the honourable court be pleased to grant stay of execution of the judgment and/or decree made on 20th day of September 2022. 3.That this honourable court be pleased to set aside the warrants of attachment issued on 18th April 2024 pending the hearing and determination of the application dated 28th November 2022. 4.That costs of the application be in cause. 1. The application is premised on the grounds on its face and the supporting affidavit of George O. Mwimali the director of the Respondent/Applicant who deponed that judgment was delivered in favour of the Applicant by this honourable court on 17th October 2022. That aggrieved by the decision of the court, the Applicant herein filed a miscellaneous application to review the judgment through the firm of Khaminwa & Khaminwa Advocates who failed to properly represent them causing the application be dismissed for want of prosecution. He stated that the said application was set for inter - partes hearings on 19th March 2024 but counsel for the applicant sought time to respond. It was stated that the matter was scheduled for mention on 6th May 2024 to confirm filing of submissions and take a ruling date in respect of the application dated 28th November 2022. That the applicant has instructed auctioneers who obtained warrants of attachment dated 18th April 2024 and if the court does not protect him from execution the application will be rendered nugatory.
DispositionAt the time of writing this ruling, there was no response on record to the application nor the parties’ submissions. The applicant herein seeks stay of execution of the judgment and setting aside of the warrants of attachment dated 18th April 2024. I have perused the file and note from the proceedings that this court reinstated the Applicant’s Application for review dated 28th November 2o22. The said application was reinstated on 8th April 2024 and is yet to be dispensed with as parties had been directed to dispose the same by way of written submissions. In light of the above and given that the same is unopposed, I allow the same in terms of prayers 2 and 3. The costs of the application shall be in the cause.
RULING READ, SIGNED AND DELIVERED VIRTUALLY AT MALINDI THIS 5TH DAY OF JUNE, 2024. ...................................S.M. GITHINJIJUDGEIn the Presence of:Mr Mohamed holding brief for Mr Odhiambo for the ApplicantMr George Mwimanyi – RespondentMr Victor Lukas – Objector...................................S.M. GITHINJIJUDGEMr Mohamed; - I apply for directions on the hearing of the application dated 28/11/2022. Court; - The application dated 28/11/2022 has been canvassed by way of written submissions.Ruling on 3/7/2024. ...................................S.M. GITHINJIJUDGEPARA 5. 6.2024Malindi HC Civil Case No.E006 of 2021- Ruling Page 2