[2017] KEELC 502 (KLR)
The court found that the applicant failed to demonstrate sufficient cause for a stay of execution. The applicant's claim that the goods were registered in the names of his immediate family members did not entitle him to a stay; instead, the registered proprietors should have instituted objection proceedings as...
Source-derived case information.
- Citation
- [2017] KEELC 502 (KLR)
- Parties
- Plaintiff: Shiphrah W. Kabia; Defendant: Mwiki Co. Ltd & 3 Others
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 475 of 2012
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution
- Outcome
- application dismissed
- Legal Topics
- Stay of Execution, Proclamation of Goods, Auctioneer Fees, Objection Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Shiphrah W. Kabia
Plaintiff
Mwiki Co. Ltd & 3 Others
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the decree.
- 2 Whether the proclaimed goods not registered in the applicant's name can be attached in execution.
- 3 Whether the auctioneer's fees were grossly exaggerated.
Ratio Decidendi
The court found that the applicant failed to demonstrate sufficient cause for a stay of execution. The applicant's claim that the goods were registered in the names of his immediate family members did not entitle him to a stay; instead, the registered proprietors should have instituted objection proceedings as provided under the Civil Procedure Rules. The court also found no merit in the allegations regarding the auctioneer's fees. Consequently, the application for stay of execution was dismissed.
Court Disposition
application dismissed
Orders
- The application for stay of execution is dismissed.
- There is no order as to costs.
Full Case Text
Judgment text and source record
20 paragraphs
IN THE REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAIROBI
ELC NO. 475 OF 2012
SHIPHRAH W. KABIA .............................................PLAINTIFF/APPLICANT
=VERSUS=
MWIKI CO. LTD & 3 OTHERS........................DEFENDANT/RESPONDENTS
RULING:
1. This is a ruling in respect of notice of motion dated 29th March 2017 brought by the Judgement debtor. The process of execution was issued and the judgement debtor’s properties were proclaimed. The Judgement debtor moved to court seeking an order of stay of execution. The grounds upon which the applicant/judgement debtor seeks stay of execution is that the proclaimed goods are not registered in his name and that the Auctioneer has grossly exaggerated his fees.
2. This application first came before me on 29th March 2017 when I directed that it be served for inter-partes hearing on 8th May 2017. The date was however changed to 12th April 2017. Counsel for the parties requested that they be allowed to dispose of the application by way of written submissions. The respondents were to file their response to the application together with their submissions. As at 16th October 2017, submissions had not been filed forcing the court to give a date for ruling.
3. The application for stay was brought under the provisions of Order 22 Rule (1). Under this Rule, a court can grant stay if it is convinced that there is sufficient cause shown. In the instant case, the applicant/judgement debtor is contending that most of the proclaimed goods are registered in the names of his immediate family members. If this be the case, then the registered proprietors of the attached goods ought to have brought objection proceedings as provided for under the Civil Procedure Rules. I do not find any merit in this application which is hereby dismissed with no order as to costs.
It is so ordered.
Dated, Signed and delivered at Nairobion this 19thday of December 2017.
E.O.OBAGA
JUDGE
In the presence of;-
……………………………….
Court Assistant: Hilda
E.O.OBAGA
JUDGE