[2017] KEHC 8521 (KLR)
The court found that the application dated 3/1/2017 was word for word identical to an earlier application dated 6/4/2016, which remained unprosecuted. The parties had previously agreed to dispose of the earlier application by way of written submissions, but had failed to do so. The court held that filing a second,...
Source-derived case information.
- Citation
- [2017] KEHC 8521 (KLR)
- Parties
- Appellant: Peter Mutai T/A Lessos Agricultural Store; Respondent: Western Seed Company Limited
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 7 of 2016
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- application dismissed with costs to the respondent
- Judges
- HK Chemitei
- Legal Topics
- Stay of Execution, Abuse of Process, Pending Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Mutai T/A Lessos Agricultural Store
Appellant
Western Seed Company Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether the application for stay of execution is an abuse of the court process due to a similar pending application.
- 2 Whether the applicant is entitled to a stay of execution pending appeal.
Ratio Decidendi
The court found that the application dated 3/1/2017 was word for word identical to an earlier application dated 6/4/2016, which remained unprosecuted. The parties had previously agreed to dispose of the earlier application by way of written submissions, but had failed to do so. The court held that filing a second, identical application without prosecuting the first amounted to an abuse of the court process. Consequently, the court dismissed the current application with costs to the respondent, emphasizing that the applicant should have prosecuted the earlier application if genuinely interested in the relief sought.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application dated 3/1/2017 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH CURT OF KENYA AT KITALE
CIVIL APPEAL NO. 7 OF 2016
PETER MUTAI
T/A LESSOS AGRICULTURAL STORE....APPELLANT/APPLICANT
VERSUS
WETERN SEED COMPANY LIMITED .........................RESPODNENT
RULING
By his application dated 3//2017 the applicant prays that there be stay of execution of the decree issued in Kitale CMCC No 365 of 2015 – Western Seed Co Ltd Vs Peter Mutai T/A/ Lessos Agricultural Storesand equally stay pending the determination of this appeal. The same is supported by the annexed affidavit of Peter Mutai. The said affidavit has attached a copy of the Memorandum of Appeal and according to the applicant he stands to suffer loss and damage and the said appeal rendered nugatory.
The respondent on its part has filed grounds of opposition stating that this application is sub judice as there is a pending application dated 6/4/1016 which is similar to this one and the same is yet to be prosecuted.
I have perused the entire proceedings herein and indeed it is true that this application is similar word for word with the application dated 6/4/2016 which is yet to be determined.
Infact on 20/4/16 the parties agreed to dispose the same by way of written submissions. Todate for reasons best known to the parties the same remains unprosecuted.
Consequently I agree with the respondent that this is an abuse of the court process. If the applicant was interested, he should have prosecuted the earlier application. This application dated 3/1/2017 is therefore dismissed with costs to the respondent.
Dated this 14th day of February 2017.
____________
H.K. CHEMITEI
JUDGE
In the presence of;
Waweru holding brief for Teti for Respondent
No appearance for the Applicant
Court Assistant - Kirong