[2004] KEHC 2131 (KLR)
The court found that the objector had lost interest in pursuing the intended appeal, as evidenced by the prolonged and unexplained delay since the notice of appeal was filed and the failure to collect typed proceedings. The withdrawal of the objector's counsel for lack of instructions further indicated abandonment...
Source-derived case information.
- Citation
- [2004] KEHC 2131 (KLR)
- Parties
- Plaintiff: Schenker & Co. (E.A.) Ltd.; Defendant: Wes Export (E.P.Z.) Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 286 of ??
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Stay of Execution and Release Funds
- Outcome
- Application allowed. Stay of execution set aside. Funds released to plaintiff. Costs awarded to applicant.
- Judges
- CM Kariuki
- Legal Topics
- Stay of Execution, Review of Orders, Release of Funds
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Schenker & Co. (E.A.) Ltd.
Plaintiff
Wes Export (E.P.Z.) Limited
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Stay of Execution and Release Funds
Legal Issues
- 1 Whether the order granting stay of execution pending appeal should be set aside due to inordinate delay and lack of prosecution of the intended appeal.
- 2 Whether the sum of Kshs.250,000 and accrued interest held in a joint account should be released to the plaintiff's counsel.
- 3 Whether the objector should bear the costs of the application.
Ratio Decidendi
The court found that the objector had lost interest in pursuing the intended appeal, as evidenced by the prolonged and unexplained delay since the notice of appeal was filed and the failure to collect typed proceedings. The withdrawal of the objector's counsel for lack of instructions further indicated abandonment of the appeal. The court held that the basis for the stay of execution no longer existed, and the continued withholding of the plaintiff's entitlement was unjust. Accordingly, the court set aside the stay order, ordered the release of the deposited funds to the plaintiff's counsel, and awarded costs to the applicant.
Court Disposition
Application allowed. Stay of execution set aside. Funds released to plaintiff. Costs awarded to applicant.
Orders
- The order of 20/12/00 granting the objector a stay of execution pending appeal is set aside.
- The sum of Kshs.250,000 together with interest accrued in joint account No.3100434007 at Credit Bank Ltd., Koinange Street Branch, is to be released to the plaintiff's counsel, M/s Okoth & Kiplagat, Advocates.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL CASE NO.286 OF 2000
SCHENKER & CO. (E.A.) LTD. ………………………… PLAINTIFF
VERSUS
WES EXPORT (E.P.Z.) LIMITED …………………….. DEFENDANT
R U L I N G
The application dated 20/1/04 is supported by the Affidavit of Lenard Maingi, of even date and on the grounds that the Decree was given on 26/4/00, Objector’s goods attached on 24/11/00; the Objector filed objection proceedings which were dismissed on 16/10/00; whereupon the Objector applied and obtained a Stay of Execution of the decree pending an appeal, on 20/12/00. The Objector has not pursued the appeal ever since despite typed proceedings having been ready for collection on 28/5/03; and that under the circumstances, the Plaintiff is entitled to the fruits of the decree herein.
The application seeks orders that the Court review, under Orders 44 rule 1; Order 50 rule 1 of the Civil Procedure Rules, and Sections 3A and 80 of the Civil Procedure Act, the Order of 20/12/00 granting the Objector a Stay pending appeal on condition of payment of Shs.250,000/= and set aside the said Order.
The applicant also prays for orders that the sum of Shs.250,000/= and interest accrued thereon in Account No.3100434007 in the names of Nyachae & Co. Advocates/Kiplagat and Associates, joint account at Credit Bank Ltd., Koinange Street Branch, be released to the Plaintiff’s Counsel M/s Okoth & Kiplagat, Advocates.
Upon perusal of the pleadings herein, especially the Supporting Affidavit of Lenard Maingi and the annexures thereto, and the Chamber Summons of M/s Nyachae & Co. Advocates, dated 2/3/04 seeking leave to withdraw from acting for the Objector herein, I have come to the conclusions that:-
(i) The Objector has absolutely lost interest in pursuing the intended appeal based on the order of Stay herein was granted. The lapse between 19/10/00 when the Objector filed the Notice of Appeal and 20/1/04 when this Notice of Motion was filed is not only inordinately long but also clearly prejudicial to the plaintiff’s entitlement to justice and interests.
(ii) The withdrawal of the Objector’s Counsel from further representation of the Objector herein for lack of instructions was the last straw of any appeal being filed. That being the case, the basis for the Stay of Execution of the order of 20/12/00 is no longer available.
(iii) Despite service, the Objector has filed no papers in response to this application.
Accordingly, I grant the orders prayed for in this Notice of Motion, namely:
1. Set aside the order of 20/12/00 which granted the Objector a Stay of Execution pending appeal;
2. Order release of Kshs.250,000/= together with interest accrued thereon in the joint account No.3100434007 in the names of Nyachae & Co. Advocates/Kiplagat & Associates, at the Credit Bank Ltd, Koinange Street Branch, to the plaintiff’s Counsel M/s Okoth & Kiplagat, Advocates.
3. I also order that the Objector do pay costs of this application.
DATED and delivered at Nairobi this 20th day of July, 2004.
O.K. MUTUNGI
JUDGE