[2005] KEHC 2761 (KLR)
The court held that it lacked jurisdiction to entertain the Defendant's application for review of its own decision refusing a stay of execution. The Defendant's application did not meet the requirements for review under Order XLIV Rule 1 of the Civil Procedure Rules, as no new or sufficient grounds were advanced....
Source-derived case information.
- Citation
- [2005] KEHC 2761 (KLR)
- Parties
- Plaintiff: Selkim Investment Limited; Defendant: Kimaru Kibirir Sittoni
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 157 of 2003
- Procedural Posture
- Civil Suit / Ruling on Application for Review of Refusal to Grant Stay of Execution
- Outcome
- application dismissed with costs
- Judges
- LK Kimaru
- Legal Topics
- Review of Court Orders, Stay of Execution, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Selkim Investment Limited
Plaintiff
Kimaru Kibirir Sittoni
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Review of Refusal to Grant Stay of Execution
Legal Issues
- 1 Whether the High Court has jurisdiction to review its own decision refusing a stay of execution pending appeal.
- 2 Whether the application for review by the Defendant falls within the ambit of Order XLIV Rule 1 of the Civil Procedure Rules.
- 3 Whether the Defendant's application constitutes an abuse of court process.
Ratio Decidendi
The court held that it lacked jurisdiction to entertain the Defendant's application for review of its own decision refusing a stay of execution. The Defendant's application did not meet the requirements for review under Order XLIV Rule 1 of the Civil Procedure Rules, as no new or sufficient grounds were advanced. The Defendant was, in effect, asking the court to sit on appeal over its own ruling, which is not permissible. The appropriate forum for seeking a stay of execution after refusal by the High Court is the Court of Appeal. The application was therefore found to be vexatious, incompetent, and an abuse of the court process, and was dismissed with costs to the Plaintiff and the 2nd...
Court Disposition
application dismissed with costs
Orders
- The Defendant's application for review is dismissed.
- Costs awarded to the Plaintiff and the 2nd and 3rd Defendants.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL SUIT NO. 157 OF 2003
SELKIM INVESTMENT LIMITED…...….…………..PLAINTIFF
VERSUS
KIMARU KIBIRIR SITTONI…………..……….…DEFENDANT
RULING
On the 9th of July 2004, this court allowed the application filed by the Plaintiff for summary judgment to be entered for it against the Defendant herein. The Defendant was ordered to vacate the suit land Baringo/Perkerra/101/150 within thirty (30) days of being served with the order of this court. Being dissatisfied with the said ruling of this court the Defendant filed a Notice of Appeal indicating his intention to appeal against the said ruling to the Court of Appeal.Contemporaneous with filing the said Notice of Appeal, the Defendant, Kimaru Kibirir Sittoni, filed an application for stay of execution under the provisions of Order XLI Rule 4 of the Civil Procedure Rules pending the hearing and determination of the intended appeal to be filed in the Court of Appeal. After hearing the said application, this court disallowed the application for stay of execution filed by the said Defendant. It would have been thought that if the Defendant was dissatisfied with the decision of this court refusing him stay of execution pending the hearing of his intended appeal, the Defendant would have made an appropriate application before the Court of Appeal.Did the Defendant do so? No. The Defendant instead decided to make an application to this court under the provisions of Order XLIV Rule 1 of the Civil Procedure Rules to review the ruling of this court refusing the grant of stay of execution which had been sought by the Defendant. The grounds upon which the Defendant is basing his said application is that the Defendant was willing to deposit the entire purchase consideration in court or in the joint names of the advocates pending the hearing and determination of the intended appeal.In the undated affidavit annexed to the said application purportedly sworn by the Defendant, Kimaru Kibirir Sittoni, the Defendant has annexed two statements marked “KKS IV”. The two statements are in the name of Kipkosgei Arap Sittoni and Sit N Move Limited. The Defendant has not given any explanation as to who Kipkosgei Arap Sittoni and Sit N Move Limited are and what relationship do they have with him to enable him pledge to the court the amounts that are in the said accounts.The Application filed by the Defendant has, naturally, been opposed by the Plaintiff.
Mr Kiplenge for the said Defendant, Miss Mathenge for the Plaintiff and Mr Githiru for the other defendants, submitted their respective clients case before me. I have considered their arguments. I have also considered the sequence of events that have taken place in this suit as stated at the beginning of this ruling. The issue for determination by this court is whether this court has jurisdiction to hear an application made in the guise of a review while in actual fact the Defendant is calling upon this court to give a determination on an issue which it had already given its ruling.As stated earlier, this court refused to grant the Defendant’s application for stay of execution pending the hearing of the Appeal. The Defendant declined to take up the application for stay of execution before the Court of Appeal and instead purported to make an application for review before this court. I hold that the Defendant is asking this court to sit on appeal on its own decision. No grounds have been advanced to persuade me to believe that the Defendants application fell within the ambit of the provisions of Order XLIV Rule 1 of the Civil Procedure Rules. The application is therefore an abuse of the due process of the court.The right forum for the Defendant to ventilate his application, if he was dissatisfied with this court’s ruling dismissing his application for stay of execution(as it appears to be the case), if for the Defendant to make an appropriate application before the Court of Appeal. To purport to make the said application before this court in the guise of an application for review is vexatious and incompetent. The application for review being vexatious, incompetent and an abuse of the due process of the court is therefore dismissed with costs to the Plaintiff and the 2nd and 3rd Defendants.
DATED at NAKURU this 17th day of February 2005.
L. KIMARU
JUDGE