[2006] KEHC 1001 (KLR)
The court found that the interested party's inability to obtain the bank guarantee required by the conditional order was not a sufficient ground for review. The court held that it had properly exercised its discretion in imposing the condition for setting aside the ex parte judgment. Although the interested party...
Source-derived case information.
- Citation
- [2006] KEHC 1001 (KLR)
- Parties
- Plaintiff: Sheikh Ali Taib; Defendant: George Ellam Wekesa; Interested Party: Selina Wekesa
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 260 of 2003
- Procedural Posture
- Civil Suit / Ruling on Motion to Stay and Review Conditional Order
- Outcome
- motion dismissed with costs to the plaintiff
- Judges
- JK Sergon
- Legal Topics
- Review of Court Orders, Conditional Orders, Bank Guarantee Requirement, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sheikh Ali Taib
Plaintiff
George Ellam Wekesa
Defendant
Selina Wekesa
Interested Party
Procedural Posture
Civil Suit / Ruling on Motion to Stay and Review Conditional Order
Legal Issues
- 1 Whether the court should stay and review its order requiring the interested party to provide a bank guarantee as a condition for setting aside ex parte judgment.
- 2 Whether the inability to obtain a bank guarantee constitutes sufficient ground for review of the court's order.
- 3 Whether newly discovered evidence regarding the registration of the property justifies review of the order.
Ratio Decidendi
The court found that the interested party's inability to obtain the bank guarantee required by the conditional order was not a sufficient ground for review. The court held that it had properly exercised its discretion in imposing the condition for setting aside the ex parte judgment. Although the interested party claimed to have discovered new evidence regarding the registration of the property, the court noted that the Plaintiff had produced title deeds showing he was the registered proprietor, and the interested party had not filed an affidavit to contest this. Therefore, the court concluded that there was no sufficient ground to review or stay its earlier order, and the motion was...
Court Disposition
motion dismissed with costs to the plaintiff
Orders
- The motion to stay and review the order of 22nd April 2005 is dismissed with costs to the Plaintiff.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Civil Suit 260 of 2003
SHEIKH ALI TAIB ……………………………......………..………..………. PLAINTIFF
VERSUS
GEORGE ELLAM WEKESA ……………….…………...……………….DEFENDANT
SELINA WEKESA…………………………………..……….….INTERESTED PARTY
RULING
The interested party herein, Selina Wekesa, applied to this court to stay the order issued on 22nd April 2005. This prayer is contained in a motion taken out pursuant to Order XLIV rules 1, 2 and 3 of the Civil Procedure Rules. The Interested Party filed an affidavit to support the motion. On the other hand, Sheikh Ali Taib, the Plaintiff herein filed a replying affidavit he swore plus a notice of Preliminary Objection to oppose the motion.
On 22nd April 2005, this court set aside the exparte judgment entered against the Interested Party herein made on 30th July 2004 on condition that the interested party would file a bankers guarantee in the sum of kshs. 2. 5million within 30 days. In effect the interested party was given 14 days to file a defence on that condition. The Interested Party now claims that she is unable to obtain the bank guarantee hence she will be unable to defend the suit. She now applies to this court to review that order by staying and subsequently setting it aside so that she will be able to defend the suit. It is her submission that the condition will unfairly lock her out from participating in the proceedings. It is also her argument that she has discovered that the property i.e Mombasa/Block x/97 has not been registered in the Plaintiff’s name. She annexed to her affidavit a copy of an official search showing that there was a prohibitory order by 2-1-2001 hence no transactions took place. The Plaintiff dismissed these assertions by giving the version of this side of the story. The Plaintiff argued this court to reject the motion because the interested party does not intend to obey the court order. The Plaintiff also annexed to his affidavit copies of the title deeds showing that he was the registered proprietor of the property in dispute. My understanding of the Interested Party’s argument is that she has discovered a new and important evidence that the property has not been transferred. Her argument also is that it would be unfair to lock her out of these proceedings. Let me start with the first point. It is clear that the Plaintiff has not controverted the interested party’s new evidence. The Interested Party has not seen it fit to file an affidavit to contest the fact that a title deed has been issued to the Plaintiff. On the second issue, I am of the considered view that the Interested Party’s inability to raise the banker’s guarantee cannot be a ground this court can use to review its ruling. This court properly exercised its discretion when making the order. Let the Interested Party comply with the order so that she can defend the suit. In the end I find that there is no sufficient ground to review the order. Consequently the motion is ordered dismissed with costs to the Plaintiff.
Dated and delivered this 19th day of October 2006
J. K. SERGON
JUDGE
In open court in the absence of the parties.