[2005] KEHC 4 (KLR)
The court held that the appellant, having failed to comply with the order requiring deposit of the decretal sum as a condition for stay of execution, is not entitled to resist the respondent's application for return of the lower court file to enable execution. The appellant's offer of alternative security was deemed...
Source-derived case information.
- Citation
- [2005] KEHC 4 (KLR)
- Parties
- Appellant: Paul Imison; Respondent: Jodad Investments Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 661 of 2001
- Procedural Posture
- Civil Appeal / Ruling on Respondent's Application for Return of Lower Court File to Enable Execution
- Outcome
- Application allowed; respondent's application for return of lower court file granted with costs.
- Judges
- ARM Visram
- Legal Topics
- Stay of Execution, Security for Decree, Execution of Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Imison
Appellant
Jodad Investments Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Respondent's Application for Return of Lower Court File to Enable Execution
Legal Issues
- 1 Whether the respondent is entitled to have the lower court file returned to enable execution of the decree.
- 2 Whether the appellant's offer of alternative security pending appeal is sufficient to resist the respondent's application.
- 3 Whether the appellant's non-compliance with the stay order affects his right to resist execution.
Ratio Decidendi
The court held that the appellant, having failed to comply with the order requiring deposit of the decretal sum as a condition for stay of execution, is not entitled to resist the respondent's application for return of the lower court file to enable execution. The appellant's offer of alternative security was deemed unhelpful in the absence of an application to set aside or review the earlier order. The court found that the appellant was in contempt of the court's order and had avoided execution, thereby denying the respondent the fruits of its judgment. Consequently, the respondent's application was allowed as prayed, with costs awarded to the respondent.
Court Disposition
Application allowed; respondent's application for return of lower court file granted with costs.
Orders
- The respondent's application dated 16th December, 2004 is allowed as prayed.
- The lower court file shall be returned to enable the respondent to pursue execution of the decree.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL 661 OF 2001
PAUL IMISON………………………………… APPELLANT
VERSUS
JODAD INVESTMENTS LIMITED …………RESPONDENT
RULING This is an application by the Respondent who was successful in the court below to have the court file of that court returned to it to enable the Respondent pursue execution of the decree made in his favour.
It is not in dispute that the decree passed against the Appellant has not been stayed as the Appellant did not comply with the conditions for stay given by me on 14th November, 2001 requiring him to deposit the decretal sum in court.
In his Replying Affidavit sworn on 3rd February, 2005 in opposition to the application, the Appellant complained that the court file sought to be referred back to the lower court was an integral part of “the Record of Appeal” and such a move would delay the hearing of the appeal. He also offered to give alternative security pending the appeal.
I do not think that the Appellant can resist the Respondent’s application. To begin with, the Appellant is in contempt of this court’s order made on 14th November, 2001. Since that time, the Appellant has avoided execution and denied the Respondent from enjoying the fruits of its Judgment. The fact that the Appellant now offers alternative security is unhelpful so long as it has neither applied to set aside or review the earlier order which dealt with the question.
In the result, I allow the Respondent’s application dated 16th December, 2004 as prayed and award it costs of the application.
Dated and delivered at Nairobi this 3rd day of March, 2005.
ALNASHIRVISRAM
JUDGE