[2019] KEHC 12344 (KLR)
The court found that the plaintiff's application for stay of execution was misconceived and unmerited because the substantive application, whose determination was sought to be awaited, had already been determined by consent of the parties. As such, the prayer for stay was overtaken by events and there was no longer...
Source-derived case information.
- Citation
- [2019] KEHC 12344 (KLR)
- Parties
- Plaintiff: Southcote Limited; Defendant: Andrew Smith; Defendant: Raymond Matiba; Defendant: Kenneth Stanley Njindo Matiba; Defendant: Stephen G. Smith; Defendant: Farlo Limited; Defendant: Haies Limited; Defendant: Alliance Nominees Limited; Defendant: Alliance Investments Ltd; Defendant: Alliance Developments Ltd; Defendant: Alliance Hotels Limited; Defendant: Marlborough House Kindergarten Ltd; Defendant: The People Limited; Defendant: Westlands (K) Limited; Defendant: Hillcrest School Limited; Defendant: Hillcrest Secondary School Ltd; Defendant: Ritzenna Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 101 of 2018
- Procedural Posture
- Civil Suit / Ruling on Application for Stay of Execution Pending Determination of Earlier Application
- Outcome
- application dismissed with costs to the defendants
- Judges
- MM Kasango
- Legal Topics
- Stay of Execution, Taxation of Costs, Withdrawal of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Southcote Limited
Plaintiff
Andrew Smith
Defendant
Raymond Matiba
Defendant
Kenneth Stanley Njindo Matiba
Defendant
Stephen G. Smith
Defendant
Farlo Limited
Defendant
Haies Limited
Defendant
Alliance Nominees Limited
Defendant
Alliance Investments Ltd
Defendant
Alliance Developments Ltd
Defendant
Alliance Hotels Limited
Defendant
Marlborough House Kindergarten Ltd
Defendant
The People Limited
Defendant
Westlands (K) Limited
Defendant
Hillcrest School Limited
Defendant
Hillcrest Secondary School Ltd
Defendant
Ritzenna Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Stay of Execution Pending Determination of Earlier Application
Legal Issues
- 1 Whether the plaintiff is entitled to a stay of execution of the certificate of taxation or decree on costs pending determination of its earlier application.
- 2 Whether the application for stay has been overtaken by events and is therefore misconceived.
Ratio Decidendi
The court found that the plaintiff's application for stay of execution was misconceived and unmerited because the substantive application, whose determination was sought to be awaited, had already been determined by consent of the parties. As such, the prayer for stay was overtaken by events and there was no longer any basis for the order sought. The court emphasized that parties are bound by their pleadings and the reliefs they seek, and since the application was no longer relevant, it was dismissed with costs to the defendants.
Court Disposition
application dismissed with costs to the defendants
Orders
- The Notice of Motion application dated 16th September 2019 is dismissed with costs to the defendants.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND ADMIRALTY DIVISION
CIVIL SUIT NO. 101 OF 2018
SOUTHCOTE LIMITED............................................PLAINTIFF/APPLICANT
- VERSUS -
ANDREW SMITH.....................................................................1ST DEFENDANT
RAYMOND MATIBA...............................................................2ND DEFENDANT
KENNETH STANLEY NJINDO MATIBA............................3RD DEFENDANT
STEPHEN G. SMITH...............................................................4TH DEFENDANT
FARLO LIMITED.....................................................................5TH DEFENDANT
HAIES LIMITED.....................................................................6TH DEFENDANT
ALLIANCE NOMINEES LIMITED.......................................7TH DEFENDANT
ALLIANCE INVESTMENTS LTD..........................................8TH DEFENDANT
ALLIANCE DEVELOPMENTS LTD......................................9TH DEFENDANT
ALLIANCE HOTELS LIMITED...........................................10TH DEFENDANT
MARLBOROUGH HOUSE KINDERGARTEN LTD.........11TH DEFENDANT
THE PEOPLE LIMITED........................................................12TH DEFENDANT
WESTLANDS (K) LIMITED..................................................13TH DEFENDANT
HILLCREST SCHOOL LIMITED.........................................14TH DEFENDANT
HILLCREST SECONDARY SCHOOL LTD.........................15TH DEFENDANT
RITZENNA LIMITED..............................................................16TH DEFENDANT
RULING
1. Southcote Limited, the plaintiff sued the 16th defendant by this action but by a notice of discontinuous, dated 21st September 2018 withdrew the case against all the defendants. The defendants filed a party/party bill of costs for costs awarded to them. The said bill of costs was taxed by the taxing master and by her Ruling of 3rd June 2019 the taxing master taxed those costs at Ksh 557,550.
2. The plaintiff filed a chamber summons application dated 14th August 2019 by which it sought, inter alia, enlargement of time for filing Notice of objection to the taxation. On 26th September 2019 the defendants consented to the granting of that prayer for extention. The defendants having so consented the court ordered the plaintiff to file the notice of objection within 7 days.
3. The Ruling is over the plaintiffs other application by Notice of Motion dated 16th September 2019. By that application the plaintiff seeks stay of execution of the “Certificate of taxation or decree on costs pending the hearing and determination of the applicants (Plaintiff’s) Application dated 14th August 2019. ”
4. The application was opposed by the defendants who raised various grounds in opposition. Some of those grounds touch on the plaintiff’s lethargic process of serving the defendants with the applications it has recently filed, which the defendants described as lacking in urgency. The defendants also referred to the plaintiff’s delay in filing the application since the taxation of the bill of costs on 3rd June 2019. It was also the defendants’ view that the plaintiff will not suffer prejudice if stay is not granted.
ANALYSIS
5. Immediately one critically looks at the prayer sought by the plaintiff one would realize that the prayer has by now been overtaken by events. This is because the plaintiff seeks to stay execution pending the hearing and determination of the application dated 14th August 2019. That application of 14th August 2019 was determined on 26th September 2019. On that ground alone the application is misconceived and unmerited.
6. Parties are bound by their pleadings and the plaintiff’s is bound by the prayer it presented before court. Since I do find that the application is unmerited the same will be dismissed with costs.
CONCLUSION
7. The Notice of Motion application dated 16th September 2019 is dismissed, for the reasons set above, with costs to the defendants.
DATED, SIGNED and DELIVERED at NAIROBI this 4th day of October, 2019.
M. KASANGO
JUDGE
Ruling read in open court in the presence of
Sophie ..........................Court clerk.
...................FOR THE PLAINTIFF
...............FOR THE DEFENDANT