[2008] KEHC 3304 (KLR)
The court held that the applicant's amended application was irregularly and improperly on the record because it was amended without obtaining the mandatory leave of the court. The defect was deemed incurable, and as such, the application was expunged from the court record. Consequently, any interim orders previously...
Source-derived case information.
- Citation
- [2008] KEHC 3304 (KLR)
- Parties
- Appellant: Philip Mwaura t/a Gillette Traders Auctioneers; Respondent: Isaac Simiyu Kuloba
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 96 of 2007
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Application expunged from the record; interim orders vacated; costs to the respondent.
- Judges
- AI Tullu
- Legal Topics
- Stay of Execution, Amendment of Pleadings, Leave of Court, Procedural Irregularities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Philip Mwaura t/a Gillette Traders Auctioneers
Appellant
Isaac Simiyu Kuloba
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the amended application was properly before the court without leave.
- 2 Whether the applicant was entitled to a stay of execution pending appeal.
Ratio Decidendi
The court held that the applicant's amended application was irregularly and improperly on the record because it was amended without obtaining the mandatory leave of the court. The defect was deemed incurable, and as such, the application was expunged from the court record. Consequently, any interim orders previously granted ex parte were vacated. The court emphasized the necessity of adhering to procedural rules regarding amendment of pleadings and applications, particularly the requirement for leave of court after the close of pleadings. The absence of substantive facts in the supporting affidavit further undermined the application.
Court Disposition
Application expunged from the record; interim orders vacated; costs to the respondent.
Orders
- The amended application is expunged from the court record.
- The interim orders previously granted ex parte are vacated.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT ELDORET
Civil Appeal 96 of 2007
PHILIP MWAURA T/A
GILLETTE TRADERS AUCTIONEERS ….............……... APPELLANT
VERSUS
ISAAC SIMIYU KULOBA …………….………....…… RESPONDENT
RULING
The Applicant filed this application by way of Notice of Motion on 25th March, 2008 seeking the following orders:-
(a) That the Court certify the matter as urgent and service be dispensed with.
(A) That the Court do grant an interim order of stay pending inter partes hearing.
(b) That the Honourable Court do grant the Appellant stay of execution pending the hearing and determination of the Appeal.
(c) Costs in the cause.
In the supporting affidavit it is suggested that he said
application is an Amended Notice of Motion. On the face of the Notice of Motion the word “Amended Notice of Motion” does not appear on the heading. However the words “Chamber Summons” appear there and is crossed in red-ink. At the bottom the words “AMENDED at Eldoret this 25th March, 2008” is inserted. However, the original date of what appears to be a Chamber Summons is not inserted.
The supporting affidavit sworn by Counsel for the Applicant is bereft of any useful facts. It does not set out the facts to justify the grant of any orders.
The Counsel for the Respondent has taken up all the foregoing points of law.
After hearing both Counsel, I do hold that if the Notice of Motion is supposed to be an Amended application, consequent to the Chamber Summons dated 2nd August, 2007 which is still pending, then the said amendment was done without any leave of the Court. It is mandatory that for one to amend any pleadings including applications after the close of pleadings, one must seek and obtain the leave of the Court. In this case no leave was sought or obtained.
The application is irregularly and improperly on the record. This defect is incurable. I do hereby expunge it from the records of the Court with costs. It follows that the interim orders which was granted by this Court exparte must be and is hereby vacated.
DATED AND DELIVERED AT ELDORET ON THIS 19TH DAY OF MAY, 2008.
M.K. IBRAHIM
JUDGE
In the presence of:
Mrs. Chege for the Respondent
Mr. Angu Kitigin for the Applicant