[2001] KEHC 598 (KLR)
The court held that the preliminary objection was misconceived. First, since the application was brought under two rules—one requiring chamber summons and the other silent on procedure—the applicants were entitled to use the notice of motion procedure, as supported by appellate authority. Second, although Order XLI...
Source-derived case information.
- Citation
- [2001] KEHC 598 (KLR)
- Parties
- Plaintiff: Shah Harji Manek Ltd.; Defendant: Amratlal Stores Limited; Defendant: Bambi Agencies Limited; Defendant: Harish Devani
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1829 of 1999
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection to Notice of Motion for Stay of Execution and Leave to Appeal
- Outcome
- preliminary objection overruled with costs
- Judges
- T Mbaluto
- Legal Topics
- Stay of Execution, Leave to Appeal, Preliminary Objection, Mode of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Shah Harji Manek Ltd.
Plaintiff
Amratlal Stores Limited
Defendant
Bambi Agencies Limited
Defendant
Harish Devani
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection to Notice of Motion for Stay of Execution and Leave to Appeal
Legal Issues
- 1 Whether the application for stay of execution and leave to appeal was incompetent for being brought by notice of motion instead of chamber summons.
- 2 Whether an application for stay of execution pending appeal is premature if made before lodging a notice of appeal.
Ratio Decidendi
The court held that the preliminary objection was misconceived. First, since the application was brought under two rules—one requiring chamber summons and the other silent on procedure—the applicants were entitled to use the notice of motion procedure, as supported by appellate authority. Second, although Order XLI Rule 4 contemplates the filing of an appeal before an application for stay, there is no express prohibition against making such an application before lodging a notice of appeal. The court found no logical basis to bar a formal application for stay of execution in these circumstances. Accordingly, the preliminary objection was overruled with costs to the applicants.
Court Disposition
preliminary objection overruled with costs
Orders
- The preliminary objection is overruled with costs to the applicants.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL CASE NO. 1829 OF 1999
SHAH HARJI MANEK LTD. ……………………....………… PLAINTIFF
VERSUS
AMRATLAL STORES LIMITED …………....……… 1ST DEFENDANT
BAMBI AGENCIES LIMITED ………………....…….. 2ND DEFENDANT
HARISH DEVANI …………………………………… 3RD DEFENDANT
RULING
On 29. 1.2000 the defendants who are judgment debtors in this case lodged a Notice of Motion application under a certificate of urgency pursuant to O. XLII Rule 1 O. XLI Rule 4 of the Civil Procedure Rules for two substantive orders namely:-
(a) That they be granted leave to appeal against the judgement entered against them on 17. 1.2001; and
(b) That execution of the decree passed against them be stayed pending the filing, hearing and determination of an appeal against the decision intended to be preferred to he Court of Appeal.
When the application came up for hearing on 30. 1.2001 before me, Mr. Wamalwa for the plaintiff who is the decree holder in the suit raised a preliminary objection in which he contended that the application was improperly before the court and therefore incompetent for two reasons.
The first reason was that an application under O. XLI rule 4 was required to be brought by Chamber Summons and not by Notice of Motion. In advancing this reason, learned counsel for the plaintiff/decree holder overlooked one fact namely that the application was under two rules namely O. XLI rule 4 and O. XLII Rule 1. As correctly observed by Mr. Wamalwa, O. XLII rule 1 provided that an application for leave to appeal shall be by summons. However O. XLI rule 4 does not make provision for the mode of making an application under the rule. The effect of that omission is that O. L rule 1 applies and the application has to be made by Notice of Motion.
In the case of Johnson Joshua Kinyanjui & Another V. Rachel Wahito Thande & Others (Court of Appeal, Civil Appeal No. 284 of 1997), it was held:-
“If an application is brought under different rules, one calling for a notice of motion application and another calling for a cha mber summons application then the party applying has a choice to use a notice of motion procedure.”
In view of that decision, I find that the applicants were entitled to bring the application by way of Notice of Motion.
The second objection was based on the claim that the application for stay pending appeal was premature on account of the same having been made before a notice of appeal had been lodged. Although I agree with Mr. Wamalwa that Rule 4 of O. XLI envisages the filing of an appeal before any application under the rule can be made, there is in my view nothing in O. XLI barring an interested party from the making of a formal application for stay of execution before the filing of an appeal. If a party can make an oral application for stay of execution before filing an appeal, I cannot see no logic in barring him from making a similar application in a formal manner. In the absence of a binding authority on the matter, I would not be prepared to support such an argument.
For the above reasons, I find the preliminary objection misconceived and I overrule it with costs.
Dated at Nairobi this 5th day of February, 2001.
T. MBALUTO
JUDGE