[2008] KEHC 383 (KLR)
The court found that the applicant (2nd Defendant) was in contempt of a prior court order requiring payment of specified sums or compliance with certain conditions. The ex parte stay previously granted was unrelated to the substantive payment ordered by the court. As the applicant had not purged the contempt, the...
Source-derived case information.
- Citation
- [2008] KEHC 383 (KLR)
- Parties
- Plaintiff: Ponangipalli Venkata Ramana Rao; Plaintiff: Kolluri Venkata Subbaraya Kamasastry; Plaintiff: EABS Bank Limited; Defendant: MRC Nairobi EPZ Limited; Defendant: Maersk Kenya Limited; Defendant: Punchihewa Prasada Robert; Defendant: Punchihewa Mercy Susila
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 19 of 2007
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Stay of Execution, Contempt of Court, Security for Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ponangipalli Venkata Ramana Rao
Plaintiff
Kolluri Venkata Subbaraya Kamasastry
Plaintiff
EABS Bank Limited
Plaintiff
MRC Nairobi EPZ Limited
Defendant
Maersk Kenya Limited
Defendant
Punchihewa Prasada Robert
Defendant
Punchihewa Mercy Susila
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution pending appeal.
- 2 Whether the applicant is in contempt of court for failing to comply with previous court orders.
- 3 Whether the court can grant audience to a party in contempt.
Ratio Decidendi
The court found that the applicant (2nd Defendant) was in contempt of a prior court order requiring payment of specified sums or compliance with certain conditions. The ex parte stay previously granted was unrelated to the substantive payment ordered by the court. As the applicant had not purged the contempt, the court held that it could not grant audience or entertain the application for stay of execution. The proper recourse for the applicant was to proceed to the Court of Appeal. Consequently, the application for stay was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution is dismissed with costs.
- The 2nd Defendant is denied audience until contempt is purged.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL COURTS) Civil Case 19 of 2007
PONANGIPALLI VENKATA RAMANA RAO..............................1ST PLAINTIFF
KOLLURI VENKATA SUBBARAYA KAMASASTRY…….….2ND PLAINTIFF
(Joint Receivers and Managers of MRC Nairobi (EPZ Ltd.)
EABS BANK LIMITED…………………………………….……..3RD PLAINTIFF
VERSUS
MRC NAIROBI EPX LIMITED………….….…………..….….1ST DEFENDANT
MAERSK KENYA LIMITED………………………..…………2ND DEFENDANT
PUNCHIHEWA PRASADA ROBERT……...……..…………3RD DEFENDANT
PUNCHIHEWA MERCY SUSILA…………....………………4TH DEFENDANT
RULING
Application by Notice of Motion under provisions of order 41 Rule 4 seeking stay of execution pending appeal against those orders.
The grounds on which the application is based is that the applicant has filed a Notice of Appeal against the decision of Court dated 19. 11. 08 and he is likely to suffer substantial loss and damage unless stay order is granted. And that there is a good arguable appeal and there is already security deposited under court order made on 16. 07. 08.
The application is supported by affidavit of Stella Kariuki, Legal Officer of the second Defendant. She swears that an application for stay Notice of Motion dated 14. 07. 08 was filed for purpose of staying orders granted by court on 04. 10. 2009 and 29. 11. 2007.
On 16. 07. 08, stay was granted upon payment of USD 40,000 or its equivalent in court. The said sum was deposited in court on 18. 07. 08. Those orders were made exparte and it was expected that the application would be fixed for hearing interpartes. However, when the matter came up for hearing there was objection from Respondent that the application was in contempt of Court Order made in this case and dated 29. 11. 07.
The court Order Was:
1. That property of the 2nd Respondent be attached until such time the 2nd Respondent will have complied with the Court Order issued by this Court on 09. 07. 07
2. That in default of such compliance, the said property of the 2nd Respondent be sold to compensate the said Applicant in the sum of Kshs. 102,910,731. 25 and USD 3,034,903.
That was the order of the Court. It means that when the 2nd Defendant came to court and offered to pay USD40,000 in exchange for the release of some containers, this was a different situation altogether. The exparte stay granted was not connected with the payment of money ordered by court on 29. 11. 07.
Therefore, the Applicant 2nd Defendant is still in contempt of court for failing to comply with order of the Court aforesaid. This Court has denied the 2nd Defendant audience until the contempt has been purged. The party must proceed to Court of Appeal to file appeal against order of High Court. This Court cannot reverse its decision when there is an Appeal proposed.
The application is dismissed with costs.
DATED this 1st day of December 2008.
JOYCE N. KHAMINWA
JUDGE