[2012] KEHC 2421 (KLR)
The court found that the sum required to be deposited was substantial and that the applicants had not refused to comply but needed more time to reorganize themselves. The court considered the value of the property at risk and the potential for substantial loss to the applicants if the property were sold. Balancing...
Source-derived case information.
- Citation
- [2012] KEHC 2421 (KLR)
- Parties
- Plaintiff: Phylis Jerotich Kimutai; Plaintiff: Henry Kipkorir Kimutai; Defendant: Kenindia Assurance Co. Ltd
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 56 of 2006
- Procedural Posture
- Civil Suit / Ruling on Application for Extension of Time to Comply With Conditional Stay Order
- Outcome
- Application allowed in part; extension of time granted for compliance with conditional stay order.
- Legal Topics
- Stay of Execution, Extension of Time, Conditional Orders, Substantial Loss, Inherent Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Phylis Jerotich Kimutai
Plaintiff
Henry Kipkorir Kimutai
Plaintiff
Kenindia Assurance Co. Ltd
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Extension of Time to Comply With Conditional Stay Order
Legal Issues
- 1 Whether the court should grant an extension of time for the applicants to comply with the conditional stay order requiring deposit of Kshs.4 million.
- 2 Whether refusal to extend time would cause substantial loss to the applicants.
- 3 Whether the court retains jurisdiction to extend time after issuing the initial order.
Ratio Decidendi
The court found that the sum required to be deposited was substantial and that the applicants had not refused to comply but needed more time to reorganize themselves. The court considered the value of the property at risk and the potential for substantial loss to the applicants if the property were sold. Balancing the interests of both parties and the need to do substantive justice, the court exercised its discretion to grant an extension of 90 days for the applicants to deposit the required sum, holding that the prejudice to the applicants outweighed that to the respondent and that the respondent could be compensated by costs. The court rejected the respondent's argument that it was...
Court Disposition
Application allowed in part; extension of time granted for compliance with conditional stay order.
Orders
- The applicants are granted 90 days from the date of the ruling to deposit Kshs.4 million in a joint interest earning account of both counsel for the applicant and the respondent.
- In default of compliance within 90 days, the orders lapse automatically.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
Civil Suit 56 of 2006
PHYLIS JEROTICH KIMUTAI
HENRY KIPKORIR KIMUTAI(Suing as personal representatives of the Estateof Jeremiah Cheuiyot Kimutai).............PLAINTIFFS
VERSUS
KENINDIA ASSURANCE CO. LTD.....................................................................................................DEFENDANT
RULING
The Notice of Motion dated 25/4/2012, is brought pursuant to Sections 1A, 1B, 3A, 63(e), 95 and Order 50 Rule 6 of the Civil Procedure Rules. The applicants seek an order of temporary stay of execution of part of the order made by the court pending the hearing of the application and that the court be pleased to enlarge time fixed for opening of a joint account and depositing of cash by a further 120 days or such period as the court may deem just and expedient.
On 23/3/2012, this court granted an order of stay of sale of the applicant’s property on condition that the applicant deposit Kshs.4 million in an interest earning account of both counsel of the applicant and respondent within 30 days. The applicant has been unable to comply with the said order for reasons that the applicant did not anticipate that the court would make such an order; that the amount is colossal and efforts are being made to raise the said sum. Phyllis Jerotich Kimutai depones that she is engaged in subsistence farming which does not generate much income and the estate of her late husband does not have much income; that the family has been able to raise Kshs.1. 2 million and she requests the court to allow her time to get the balance so that it can be invested as ordered by the court. She further deponed that the suit property is worth about Kshs.60 million and if sold, the applicants are bound to suffer substantial loss.
Praful Damji, the Senior Assistant General Manager with the respondent swore a replying affidavit dated 7/7/2012 in which he states that the application is an abuse of the court process, unmerited as this matter is 6 years old; that the applicants have the means and ability to deposit the said sums and comply with the court order; that the applicants have failed to comply with the courts’ order and the same cannot be extended, as this court is functus officio and that no good reason has been adduced to warrant the extension of time.
Under Sections 1A, 1B, 3A, 63(3) of the Civil Procedure Act this court is enjoined to ensure that the court does substantive justice to the parties without undue regard to technicalities. The applicant is invoking the court’s inherent jurisdiction.
The court does admit that Kshs.4 million is indeed a colossal sum and the applicant is not refusing to comply with the court’s order but is seeking the court’s indulgence to be allowed time to reorganize themselves to comply with the court’s orders. The subject property is said to be worth Kshs.60 million. If it were to be sold, the applicant will indeed suffer substantial loss. This matter has been pending since 2006. Even if the court grants the prayer sought, a period of 120 days would not make much difference. In any event, the respondent can be compensated in terms of costs.
I do appreciate that the respondents have their rights too to protect but this court has to maintain that delicate balance so that Sections 1A and 1B of the Civil Procedure Act are not applied to defeat the purpose for which they were enacted. In the end, I do find that if I do not grant the order sought the prejudice that the applicants may suffer will far outweigh that of the respondent. Therefore this court does exercise its discretion and will allow the applicant 90 days from today’s date, within which to deposit the sum of Kshs.4 million in a joint interest earning account of both counsel for the applicant and the respondent. In default, the orders do lapse automatically. The applicant will bear the costs of this application.
DATED and DELIVERED this 27th day of July, 2012.
R.P.V. WENDOH
JUDGE
PRESENT:
Mr. Weda for the applicant
N/A for the respondent
Kennedy – Court Clerk