[2018] KEHC 2879 (KLR)
The court found that the 3rd defendant's costs had been taxed and that the stay of execution, which was conditional on the plaintiff depositing Ksh 100,000, had served its purpose. Since the plaintiff did not oppose the application or attend court, and there was no justification for continuing the stay, the court...
Source-derived case information.
- Citation
- [2018] KEHC 2879 (KLR)
- Parties
- Plaintiff: Ratilal Gova Sumaria; Defendant: Fina Bank Ltd; Defendant: Joseph M. Gikonyo t/a Garam Investment Auctioneers; Defendant: H.M. Manek
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 640 of 2004
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Stay of Execution and Release Deposited Funds
- Outcome
- Application allowed; stay of execution set aside; deposited funds released to 3rd defendant; costs awarded to 3rd defendant.
- Judges
- MM Kasango
- Legal Topics
- Stay of Execution, Taxation of Costs, Release of Security, Consent Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ratilal Gova Sumaria
Plaintiff
Fina Bank Ltd
Defendant
Joseph M. Gikonyo t/a Garam Investment Auctioneers
Defendant
H.M. Manek
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Stay of Execution and Release Deposited Funds
Legal Issues
- 1 Whether the stay of execution granted on 4th April 2006 should be set aside.
- 2 Whether the sum of Ksh 100,000 deposited by the plaintiff should be released to the 3rd defendant.
- 3 Whether the 3rd defendant is entitled to costs of the application.
Ratio Decidendi
The court found that the 3rd defendant's costs had been taxed and that the stay of execution, which was conditional on the plaintiff depositing Ksh 100,000, had served its purpose. Since the plaintiff did not oppose the application or attend court, and there was no justification for continuing the stay, the court held that the stay should be set aside. The deposited sum was ordered to be released to the 3rd defendant, and he was awarded the costs of the application. The court emphasized that the 3rd defendant should not be unjustly prevented from recovering his taxed costs, especially in the absence of opposition from the plaintiff.
Court Disposition
Application allowed; stay of execution set aside; deposited funds released to 3rd defendant; costs awarded to 3rd defendant.
Orders
- The amount deposited in court by the plaintiff on 7th April 2006 under receipt no. B398543 shall be released to the 3rd defendant forthwith.
- The stay of execution granted on 4th April 2006 to the plaintiff is hereby set aside and vacated.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
COMMERCIAL AND ADMIRALTY DIVISION
CIVIL CASE NO. 640 OF 2004
RATILAL GOVA SUMARIA...............................................PLAINTIFF
-VERSUS-
FINA BANK LTD.......................................................1ST DEFENDANT
JOSEPH M. GIKONYOT/A GARAM
INVESTMENT AUCTIONEERS...........................2ND DEFENDANT
H.M. MANEK............................................................3RD DEFENDANT
RULING
1. On 16th December, 2014, parties in this matter recorded a consent before court, the effect of which was to have this suit marked as settled with costs to the defendant.
2. The 3rd defendants costs were taxed at ksh 481,766 by the ruling of the Deputy Registrar, the taxing master, dated 8th July 2005.
3. The plaintiff moved the court for stay of execution of those costs by chamber summons dated 4th April 2006. The plaintiff obtained stay of execution for those costs as sought by that application but on condition that the plaintiff did deposit into court ksh 100,000 within 7 days from the 4th April 2006. On 7th April 2006, the plaintiff deposited ksh 100,000 in this court and was issued with a receipt no. B398543.
4. The 3rd defendant by a notice of motion dated 13th February 2018, seeks orders for the stay of execution granted on 4th April 2006 to be set aside and for the release of Ksh 100,000 to him.
5. Although the application was served on the plaintiff’s learned advocated T.O. Kopere & Co. Advocates, the said advocate and the plaintiff did not attend court on 18th July 2018when the application was heard. The plaintiff did not also file any document in opposition to the application.
6. The application is merited. The 3rd defendant’s costs were taxed but the stay of execution granted on 4th April 2006 has prevented the 3rd defendant from recovering those costs.
7. Accordingly I grant the following orders:
a. The amount deposited in this court by the plaintiff on 7th April 2006 under receipt no. B398543 in this file shall be released to the 3rd defendant forthwith.
b. The stay of execution granted on 4th April 2006 to the plaintiff is hereby set aside and vacated.
c. The defendant is awarded the costs of the notice of motion dated 13th February 2018.
DATED, SIGNED and DELIVERED at NAIROBI this30thday of October,2018.
MARY KASANGO
JUDGE
Ruling read and delivered in open court in the presence of:
Court Assistant.............................Sophie
........................................for the Plaintiff
....................................for the Defendants
MARY KASANGO
JUDGE