[2021] KEHC 5375 (KLR)
The court found that the applicants had previously filed an application dated 26th June, 2020 seeking a stay of execution, which had not been withdrawn or determined. The applicants failed to disclose this fact to the court when filing the present Motion dated 9th March, 2021, and did not respond to the respondent's...
Source-derived case information.
- Citation
- [2021] KEHC 5375 (KLR)
- Parties
- Appellant: Oracle Motor Limited; Appellant: New Status Motor Limited; Respondent: Johnson Mutisya Munguti; Respondent: Tahidi Motors; Respondent: Margaret Anindo t/a Igare Auctioneers; Respondent: Moran Auctioneers
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 256 of 2020
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- A Mbogholi-Msagha, JK Sergon
- Legal Topics
- Stay of Execution, Abuse of Court Process, Non Disclosure, Interlocutory Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Oracle Motor Limited
Appellant
New Status Motor Limited
Appellant
Johnson Mutisya Munguti
Respondent
Tahidi Motors
Respondent
Margaret Anindo t/a Igare Auctioneers
Respondent
Moran Auctioneers
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicants are entitled to a stay of execution pending appeal.
- 2 Whether the filing of a second application for stay without withdrawing the first constitutes an abuse of court process.
- 3 Whether non-disclosure of the earlier application affects the applicants' entitlement to relief.
Ratio Decidendi
The court found that the applicants had previously filed an application dated 26th June, 2020 seeking a stay of execution, which had not been withdrawn or determined. The applicants failed to disclose this fact to the court when filing the present Motion dated 9th March, 2021, and did not respond to the respondent's assertion regarding the earlier application. The court held that filing a second application for the same relief without withdrawing the first, and failing to disclose its existence, constitutes an abuse of the court process. As a result, the Motion dated 9th March, 2021 was found to be incompetent and was dismissed with costs to the 1st respondent.
Court Disposition
application dismissed with costs
Orders
- The Notice of Motion dated 9th March, 2021 is dismissed with costs to the 1st respondent.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 256 OF 2020
ORACLE MOTOR LIMITED.............1ST APPELLANT/APPLICANT
NEW STATUS MOTOR LIMITED.....2ND APPELLANT/APPLICANT
-VERSUS-
JOHNSON MUTISYA MUNGUTI........................1ST RESPONDENT
TAHIDI MOTORS................................................2ND RESPONDENT
MARGARET ANINDO T/A
IGARE AUCTIONEERS.......................................3RD RESPONDENT
MORAN AUCTIONEERS....................................4TH RESPONDENT
RULING
1. The 1st and 2nd appellants/applicants filed the Notice of Motion dated 9th March, 2021 supported by the grounds set out on the face thereof and the facts stated in the sworn affidavit of Adeel Akbar, Director of the 1st applicant. The applicants sought an order that there be a stay of execution of the judgment and decree issued by the trial court in Milimani CMCC NO. 1219 of 2017 pending the hearing and determination of the appeal.
2. The Motion stands opposed by way of the replying affidavit sworn by the 1st respondent on 9th April, 2021, to which the applicants filed a further affidavit sworn by Adeel Akbar.
3. The Motion was argued by way of written submissions. I have considered the grounds set out on the face of the Motion, the facts deponed in the affidavits in support of and in opposition thereto, and the rival written submissions. It is apparent from the record that the 2nd to 4th respondents did not file any documents in respect to the Motion or take part in the hearing thereof.
4. Before I consider the merits of the Motion, I note from the averments made by the 1st respondent that the applicants had previously filed a similar application dated 26th June, 2020 and which application has not been withdrawn or determined. According to the 1st respondent, this constitutes an abuse of the court process. The applicant did not offer any response on this specific issue.
5. Upon perusal of the record, I established that as correctly put by the 1st respondent, the applicants had previously lodged the application dated 26th June, 2020 before the High Court seeking an order for a stay of execution of the judgment delivered by the trial court. According to the record, there is nothing to indicate that the said application was ever withdrawn, though the record shows that the court declined to grant any interim orders. Subsequently, the applicants brought the instant Motion dated 9th March, 2021 seeking the same orders as those previously sought.
6. From the foregoing, it is clear the Motion of 9th March, 2021 is incompetent before this court. I further find that the failure on the part of the applicants to disclose to this court the existence of the application dated 26th June, 2020 constitutes an abuse of the court process, which this court cannot condone.
7. For that reason, the Motion dated 9th March, 2021 is hereby dismissed with costs to the 1st respondent.
DATED AND SIGNED AT NAIROBI THIS........ DAY OF.......... 2021
A. MBOGHOLI MSAGHA
JUDGE
DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 7TH DAY OF JULY, 2021.
J. K. SERGON
JUDGE
In the presence of:
Mr. Osoro for the Appellant
Mr. Mwenda for the Respondent