[2010] KECA 199 (KLR)
The court found that the applicants failed to establish any new and important matter justifying review of the order requiring a bank guarantee as security for stay of execution. The alleged discovery regarding their bank accounts was unsupported by evidence, as no bank account statements were exhibited. The title...
Source-derived case information.
- Citation
- [2010] KECA 199 (KLR)
- Parties
- Appellant: Omar Mohamed; Appellant: Said Ali; Respondent: Dr. Abeid Kombo; Respondent: Johnstone Mokaya
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 140 of 2006
- Procedural Posture
- Civil Appeal / Ruling on Application for Review of Security for Stay of Execution
- Outcome
- application dismissed with costs
- Legal Topics
- Review of Court Orders, Security for Stay, Affidavit Evidence, Adequacy of Security
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Omar Mohamed
Appellant
Said Ali
Appellant
Dr. Abeid Kombo
Respondent
Johnstone Mokaya
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Review of Security for Stay of Execution
Legal Issues
- 1 Whether the applicants have established grounds for review of the order requiring a bank guarantee as security for stay of execution.
- 2 Whether the offer of a title deed as security is adequate and acceptable in place of a bank guarantee.
- 3 Whether the replying affidavit by counsel for the respondent is incompetent under Rule 9 of the Advocates Practice Rules.
Ratio Decidendi
The court found that the applicants failed to establish any new and important matter justifying review of the order requiring a bank guarantee as security for stay of execution. The alleged discovery regarding their bank accounts was unsupported by evidence, as no bank account statements were exhibited. The title deed offered as alternative security was also inadequate, lacking a current certificate of official search and clarity on its status. The court further held that the replying affidavit by the respondent's counsel was not incompetent, as it did not contain contentious matters of fact. Consequently, the application for review was dismissed for lack of merit.
Court Disposition
application dismissed with costs
Orders
- The application dated 27th November 2009 is dismissed with costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT MOMBASA
Civil Appeal 140 of 2006
1. OMAR MOHAMED
2. SAID ALI……………………………………………...APPELLANTS
VERSUS
1. DR. ABEID KOMBO
2. JOHNSTONE MOKAYA……………………….…..RESPONDENTS
RULING
I have before me an application for one main order that the order made on12th November 2009be reviewed to the extent that the applicants be allowed to deposit the Original Title Deed Number Mtondia/Roka/10 as security as opposed to a bank guarantee in the sum of Kshs. 500,000. The application has been brought under the provisions of sections 1, 3A and 80 of the Civil Procedure Act, Order L Rule 1, Order XLIV Rule 1 of the Civil Procedure Rules, Sections 3A and 3B of the Appellate Jurisdiction Act and all other enabling provisions of the Law.The main reason for the application is that the appellants, due to their financial constraints and inadequate time are unable to honour the conditional order of12th November 2009.
The application is supported by the affidavit of Dr. Abeid Kombo (hereinafter “the 1st Applicant”).In the affidavit, it is deponed, among other things, that the applicants are unable to provide the bank guarantee of Kshs. 500,000/= as ordered but wish to replace the same with a Title Deed in the deponent’s name which is valued at Ksh. 700,00/=.The application is opposed and there is a replying affidavit sworn by counsel for the respondent in which it is deponed, inter alia, that the applicants have not made a full disclosure.Besides, according to counsel for the respondent, this application is incompetent since the order sought to be reviewed has not been exhibited.
When the application came up before me for hearing, counsel agreed to file written submissions which they duly filed by15th March 2010. The submissions merely substantiate the parties’ stand-points taken in their respective affidavits.
I have given due consideration to this application, the affidavits filed and the submissions of counsel. Having done so, I take the following view of the matter.The applicants have grounded their application on discovery of new and important matter which is the discovery that their bank accounts would not be able to furnish security worth Kshs. 500,000/= and that the said title can act as an alternative and adequate security.The said accounts are not exhibited.The replying affidavit put the applicants on notice of that deficiency, yet no further or supplementary affidavit was filed to introduce the alleged accounts.In the premises the respondent’s contention that there has been lack of candour is not altogether without merit.There is therefore no foundation for the assertion that the applicants made any new discovery regarding their bank accounts.In any event those accounts must have been there at the time they made their application for stay of execution and so was the said title.That title attracts further criticism.It was issued on13th March 1992. The current status of the register is unknown since a current certificate of official search was not exhibited.It is the register that constitutes the real title for purposes of security.In the event, even if the applicants had satisfied the requirements of Order XLIV of the Civil Procedure Rules and section 80 of the Civil Procedure Act, the security offered in my view would not be adequate.
Before concluding this matter, counsel for the applicants objected to the replying affidavit sworn by counsel for the respondents arguing that the affidavit contravenes Rule 9 of the Advocates Practice Rules.I have carefully considered the impugned affidavit.The only alleged contentions issue therein is comprised in paragraph 6 of the affidavit.The rest of the affidavit cannot be said to contain contentious issues.The entire affidavit is therefore not incompetent.In any event even if the said paragraph were struck out, that event per se would not save the applicants’ application in view of my above findings.
In the end, the application dated27th November 2009and filed on the same date is without merit and is dismissed with costs.
It is so ordered.
DATED AND DELIVERED ATMOMBASATHIS 23RD DAY OF APRIL 2010.
F. AZANGALALA
JUDGE
Read in the presence of:-
Khatib for the Appellants and Ogola holding brief for Njanga for the Respondents.
F. AZANGALALA
JUDGE
23RD APRIL 2010