[2021] KEELC 453 (KLR)
The court found that the applicant's current and previous applications sought substantially the same reliefs regarding stay and setting aside of execution orders, which had already been determined in earlier rulings. The applicant failed to comply with the court's conditional stay orders requiring payment of...
Source-derived case information.
- Citation
- [2021] KEELC 453 (KLR)
- Parties
- Plaintiff: Peter Muriungi; Plaintiff: Kaburu Leria; Respondent: Trustee Registered – Catholic Parish D.O.M. Laare
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 270 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Warrant of Arrest and for Release of Attached Property
- Outcome
- application dismissed with costs
- Legal Topics
- Execution of Decrees, Stay of Execution, Res Judicata, Eviction Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Muriungi
Plaintiff
Kaburu Leria
Plaintiff
Trustee Registered – Catholic Parish D.O.M. Laare
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Warrant of Arrest and for Release of Attached Property
Legal Issues
- 1 Whether the application to set aside or vary the warrant of arrest is res judicata.
- 2 Whether the warrants of arrest and attachment were regularly issued after default in payment of decretal costs.
- 3 Whether the applicant is entitled to stay or setting aside of execution orders.
Ratio Decidendi
The court found that the applicant's current and previous applications sought substantially the same reliefs regarding stay and setting aside of execution orders, which had already been determined in earlier rulings. The applicant failed to comply with the court's conditional stay orders requiring payment of decretal costs in instalments, resulting in regular issuance of warrants of arrest and attachment. The court held that the applications were res judicata and an abuse of process, and that it was functus officio on the issues raised. Accordingly, the applications were dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application dated 28.4.2021 is dismissed with costs.
- The file is closed.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC CASE NO. 270 OF 2016
PETER MURIUNGI......................................................................1ST PLAINTIFF
KABURU LERIA.........................................................................2ND PLAINTIFF
VERSUS
TRUSTEE REGISTERED – CATHOLIC PARISH D.O.M.
LAARE............................................................................................RESPONDENT
RULING
1. Through an application dated 28. 4.2021 Peter Muriungi seeks the warrant of arrest issued on 7. 10. 2020 be set aside or varied, his property be released and the O.C.S leave to ensure compliance of the orders.
2. The grounds upon which the application is made are the warrants were issued without a notice to him; mistakes of his advocates should not be visited upon him; he will be prejudiced if the warrants are not set aside; goods wrongly attached should be returned.
3. The application is supported by his own affidavit sworn on 28. 4.2021. He claims he has filed a complaint against his former advocates, was condemned unheard and that it is only fair and just that the orders be set aside.
4. The record shows the applicant filed a similar application for stay and have to pay the costs in instalments. By a ruling delivered on 19. 2.2020, the court ordered the applicant to pay a deposit of Kshs. 50,000/= by 19. 3.2020 and thereafter to be paying Kshs. 10,000/= every month until the costs were cleared and in default execution to issue. A stay of execution was therefore granted on those terms.
5. On 1. 10. 2020 the decree holder told the court no payment was ever made hence warrants of execution were issued to be executed by the O.C.S Laare.
6. On 3. 11. 2020 the applicant filed a notice of motion dated 2. 11. 2020 seeking for stay of the warrants of arrest. Before the said application could be disposed of he filed the current application which is similar to the earlier one.
7. It is not also lost that a similar application had been filed herein and was determined on 26. 11. 2018.
8. In the circumstances it is apparent the current two applications are resjudicata and therefore an abuse of the court process. Further the warrants sought to be stayed and or set aside or varied were regularly issued after the applicant failed to honour the orders to liquidate the decretal costs in instalments.
9. The two supporting affidavits are very silent on whether or not the applicant paid a single instalment as ordered.
10. Again the record shows the applicant failed to honor court’s orders to vacate the suit premises decreed to the defendant as a result of which auctioneers evicted him. He cannot therefore turn around and deny that there were regular orders of this court for his eviction.
11. The court has previously determined so far as the above issues of stay and setting aside of the decree hence the court is functus officio. The two applications are therefore dismissed with costs.
File closed.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS 8TH DAY OF DECEMBER, 2021
In presence of:
Mr. Kariuki holding brief for respondent
Haron Gitonga for respondent
HON. C.K. NZILI
ELC JUDGE