[2012] KEHC 4491 (KLR)
The court found that the application for stay of execution was defective because it was drawn and filed by an advocate who was not properly on record for the applicant. The procedural irregularity was fatal to the application, and as such, the court struck out the application. The court further granted leave to the...
Source-derived case information.
- Citation
- [2012] KEHC 4491 (KLR)
- Parties
- Appellant: Peter Mwangi Gathogo t/a Daystar Auctioneers; Respondent: Robert Mwangi Kamau
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 531 of 2011
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution
- Outcome
- Application struck out as defective due to improper representation.
- Legal Topics
- Stay of Execution, Summary Judgment, Representation of Parties, Auction Sales
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Mwangi Gathogo t/a Daystar Auctioneers
Appellant
Robert Mwangi Kamau
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution
Legal Issues
- 1 Whether the application for stay of execution was properly before the court given the issue of representation.
- 2 Whether the applicant was entitled to an order of stay of execution pending appeal.
Ratio Decidendi
The court found that the application for stay of execution was defective because it was drawn and filed by an advocate who was not properly on record for the applicant. The procedural irregularity was fatal to the application, and as such, the court struck out the application. The court further granted leave to the applicant to file a proper application through the correct advocate. Costs were awarded to the respondent. The substantive merits of the application for stay were not considered due to the procedural defect.
Court Disposition
Application struck out as defective due to improper representation.
Orders
- The application for stay of execution is struck out.
- Leave is granted to file a correct application.
Full Case Text
Judgment text and source record
56 paragraphs
Editorial Summary
1. Civil Appeal
2. Civil Practice and Procedure
3. Subject of Tribunal case
3. 1 Sale of motor vehicle by way of auction.
3. 2 Fraud
3. 3 Summary judgment
3. 4 Related cases
CA 1034/07
SPMCC 1885/04
4. Application for stay of execution
Notice of Motion 18th January 2012
5. Issue of representation.
Application filed by E.K. Mutua – not on record.
6. Objection by the respondent
In the alternative, no stay of execution be granted.
7. Held:
i) Application defective andis struck out.
8. Case Law:
9. Advocates:
i) G.K. Wandati holding brief for Owino instructed by M/s E.K. Mutua & Co Advocates for appellant
ii) C.M. Ngugi instructed by C.M. Ngugi & Co Advocates forrespondent
REPUBLIC OF KENYA
IN THE HIGH COURT
AT NAIROBI
MILIMANI LAW COURTS
Civil Appeal 531 of 2011
PETER MWANGI GATHOGO T/A
DAYSTAR AUCTIONEERS ……………………… APPELLANT/ORIGINAL DEFENDANT
VERSUS
ROBERT MWANGI KAMAU …….……………… RESPONDENT/ORIGINAL PLAINTIFF
(Being an appeal arising from the judgment of Hon. P. Onyango – Chief Magistrate in Case No. 4172 of 2010 dated 21st September 2011
at Milimani Commercial Courts)
R U L I N G
Application for Stay of Execution
Notice of Motion 18th January 2012
I.BACKGROUND
1. The matter herein arises from an auction of a lorry and touched upon a series of other suits and appeal.
2. SPMCC 1885/04
HCCA 1034/07
CMCC 4172/10
HCCA 531/11
3. The appellant/applicant seeks orders of stay of execution to the ruling of the Hon. Magistrate delivered on 21st September 2011 whereby an application for summary judgment against his defence was entered and stuck out.
4. That his defence had no triable issues.
5. The applicant filed appeal on 19th October 2011 and sought the order of stay of execution pending the hearing of the appeal.
6. The application was opposed on grounds that the advocate who drew up the application was different from the advocate for the applicant who was never on record.
7. That the application be struck out. If per chance the application is not struck out, then the court should find there is no basis to the application.
8. The application indeed is citing an advocate firm from the one who filed the application. The application be and is hereby struck out.
9. Leave be and is hereby granted to file a correct application.
10. There will be costs to the respondent.
DATED THIS 23RD DAY OF MARCH 2012 AT NAIROBI
M.A. ANG’AWA
JUDGE
Advocates:
i) G.K. Wandati holding brief for Owino instructed by M/s E.K. Mutua & Co Advocates for appellant
ii) C.M. Ngugi instructed by C.M. Ngugi & Co Advocates forrespondent