[2018] KEHC 5807 (KLR)
The court found that although there were gaps in the Notice of Motion, specifically missing dates, these did not render the application fatally defective as the prayers could still be understood. Upon reviewing the court record, the court confirmed that the outstanding amount as calculated by the court registry was...
Source-derived case information.
- Citation
- [2018] KEHC 5807 (KLR)
- Parties
- Appellant: Pamba Onweno Amila; Respondent: John Juma Kutolo
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 34 of 2010
- Procedural Posture
- Civil Appeal / Ruling on Stay Application
- Outcome
- application dismissed with costs to the respondent
- Judges
- KW Kiarie
- Legal Topics
- Stay of Execution, Appeals Process, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pamba Onweno Amila
Appellant
John Juma Kutolo
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the decree and judgment pending determination of the application.
- 2 Whether the outstanding amount was properly calculated and forms a valid basis for execution.
Ratio Decidendi
The court found that although there were gaps in the Notice of Motion, specifically missing dates, these did not render the application fatally defective as the prayers could still be understood. Upon reviewing the court record, the court confirmed that the outstanding amount as calculated by the court registry was Kshs. 86,060 as at 7th February 2018, which matched the amount in the notice issued by the auctioneers. The court concluded that the application for stay of execution lacked merit as the calculations were proper and there was no sufficient cause shown to warrant a stay. Consequently, the application was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for stay of execution is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUSIA
CIVIL APPEAL NO.34 OF 2010
PAMBA ONWENO AMILA.......................................APPELLANT
VERSUS
JOHN JUMA KUTOLO.............................................RESPONDENT
RULING
1. PAMBA ONWENO AMILA,the applicant herein brought an application by way of Notice of Motion dated 17th April 2018 pursuant to sections 3A, 75, 78 and 79G of the Civil Procedure Act and Order and Order 42 Rule 6 of the Civil Procedure Rules and all enabling provisions of the law. The applicant is seeking orders as follows:-
a) That there be a stay of execution of the decree and judgment herein pending the hearing and determination of this application.
b) That the costs be provided for.
2. The application was premised on the following grounds:
a) That the respondent has instructed a firm of auctioneers to attach his property.
b) That the respondent has failed to work out proper calculations to reflect the outstanding balance.
3. The application was opposed on the following grounds:
a) That the Notice of Motion is incomplete.
b) That the amount claimed was properly and procedurally arrived at by the Court.
c) That the application lacks legal basis and that it is an abuse of the due process of the court.
4. Paragraphs 2&3 of the Notice of Motion have gaps. In my view these gaps have left out some dates. Though this is an undesirable practice, I find that it cannot be a basis for dismissing the application. But for the missing date, one is able to understand the prayers thereat.
5. I have perused the court record and noted that the outstanding calculations at the court registry as at 7th February 2018 is shown as Kss.86,060/=. This is the amount that is reflected in the notice issued to the applicant by Eshikoni Auctioneers as the basis for the attachment.
6. The application therefore lacks merit. The same is dismissed with costs to the respondent.
DELIVERED and SIGNEDatBUSIA this 29thdayof May, 2018
KIARIE WAWERU KIARIE
JUDGE