[2021] KEHC 6002 (KLR)
The court found that the application was not anchored on any valid suit, appeal, or recognized originating process. There was no plaint, appeal, miscellaneous application, or petition before the court. As such, the court lacked jurisdiction to entertain the application or grant the orders sought. The earlier ex...
Source-derived case information.
- Citation
- [2021] KEHC 6002 (KLR)
- Parties
- Respondent: Samwel Ndungu Karanja; Applicant: Maurice Omamo Anyanda
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case E009 of 2021
- Procedural Posture
- Civil Case / Ruling on Application for Stay of Execution and Payment by Instalments
- Outcome
- application and suit dismissed with costs to the respondent; earlier ex parte orders vacated
- Judges
- HK Chemitei
- Legal Topics
- Stay of Execution, Payment by Instalments, Jurisdiction, Dismissal of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samwel Ndungu Karanja
Respondent
Maurice Omamo Anyanda
Applicant
Procedural Posture
Civil Case / Ruling on Application for Stay of Execution and Payment by Instalments
Legal Issues
- 1 Whether the application for stay of execution and payment by instalments is properly before the court.
- 2 Whether there exists a valid suit or appeal to anchor the application.
- 3 Whether the court has jurisdiction to grant the orders sought in the absence of a valid suit.
Ratio Decidendi
The court found that the application was not anchored on any valid suit, appeal, or recognized originating process. There was no plaint, appeal, miscellaneous application, or petition before the court. As such, the court lacked jurisdiction to entertain the application or grant the orders sought. The earlier ex parte orders were issued under the mistaken belief that a valid suit existed. Consequently, both the application and the purported suit were dismissed for want of a proper legal foundation.
Court Disposition
application and suit dismissed with costs to the respondent; earlier ex parte orders vacated
Orders
- The application dated 8th April 2021 is dismissed with costs to the respondent.
- The suit is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL CASE NO. E009 OF 2021
SAMWEL NDUNGU KARANJA..............................PLAINTIFF/RESPONDENT
VERSUS
MAURICE OMAMO ANYANDA............................DEFENDANT/APPLICANT
RULING
1. The Notice of Motion by the applicant dated 8th April 2021 seeks among others orders of stay of execution pending the hearing and determination of the application as well as orders to be allowed to pay the decretal amount by instalments.
2. The application is supported by the affidavit of one Esther Wairimu the legal officer of the insurance company which had insured the applicant. There are other grounds which are attached to the said application for instance the fact that it had made an offer to pay the amount by instalments which offer was rejected by the respondent.
3. The respondent has filed a replying affidavit dated 19th April 2021 in which he has prayed that the application ought to be disallowed for the simple reason that the applicant had made a similar application before the trial court and it was dismissed.
4. This court would not want to dwell on the application on merit for the reason that the same is not premised on any suit. It has no legs to stand. The suit herein is not a suit. There is no plaint. It is not even an appeal. It is not a miscellaneous application. It is not an originating summons. It is not a petition. It is a farce.
5. The parties litigated over suit No. Engineer SPMCC No 56 of 2019. That is what is contained in the annexures. There is no appeal before this court. Consequently, this court cannot do much to the applicant. The earlier orders issued Exparte and electronically was based on the assumption that the suit was in existence. It was not.
6. For the above reasons, the application and this suit is hereby dismissed with costs to the respondent. The earlier orders are hereby vacated.
Dated signed and delivered via video call at Nakuru this 23rd day of June 2021.
H K CHEMITEI
JUDGE