[2006] KEHC 962 (KLR)
The court found that the legal provisions cited by the applicant, namely Order XX rule 16 and Order XXI 22(1), do not apply to the application for stay of execution and abeyance of the notice to show cause. The grounds advanced by the applicant are more appropriately raised as a response to the notice to show cause,...
Source-derived case information.
- Citation
- [2006] KEHC 962 (KLR)
- Parties
- Plaintiff: Southern Credit Banking Corp. Ltd.; Defendant: Peter Kinyua Muchendu T/A Kinyua & Co. Auctioneers
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 234 of 1999
- Procedural Posture
- Civil Case / Ruling on Application for Stay of Execution and Abeyance of Notice to Show Cause
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Stay of Execution, Notice to Show Cause, Accounting of Sale Proceeds
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Southern Credit Banking Corp. Ltd.
Plaintiff
Peter Kinyua Muchendu T/A Kinyua & Co. Auctioneers
Defendant
Procedural Posture
Civil Case / Ruling on Application for Stay of Execution and Abeyance of Notice to Show Cause
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the decree pending the giving of accounts for the sale of the motor vehicle.
- 2 Whether the notice to show cause should be kept in abeyance until accounts are rendered.
- 3 Whether Order XX rule 16 and Order XXI 22(1) apply to the present application.
Ratio Decidendi
The court found that the legal provisions cited by the applicant, namely Order XX rule 16 and Order XXI 22(1), do not apply to the application for stay of execution and abeyance of the notice to show cause. The grounds advanced by the applicant are more appropriately raised as a response to the notice to show cause, rather than through a separate application. As such, the application was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The motion for stay of execution and abeyance of the notice to show cause is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Civil Case 234 of 1999
SOUTHERN CREDIT BANKING CORP. LTD. .....................................................…PLAINTIFF
VERSUS
PETER KINYUA MUCHENDU T/A KINYUA & CO. AUCTIONEERS……….DEFENDANT
R U L I N G
By a motion filed under Order XX rule 16 and Order XXI 22(1) Peter Kinyua Muchendu T/A Kinyua & co. Auctioneers prayed for an order of stay of Execution of the decree. He also sought for the notice to show cause order of 6. 8.2004 to be kept in abeyance pending the giving of accounts of how much was realized on the sale of Motor vehicle registration K.A.H. 340 R.
The Respondent, south Banking Corporation Limited objected to the application. What provoked the filing of this motion is the notice to show cause served upon the applicant dated 8th August 2004 in which the applicant was told to pay a sum of Kshs.1,731,126/60 and in default show cause why he should not be put in civil jail.
It is the argument of Mr. Ouma advocate for the applicant that it is necessary for the Respondent to provide accounts of how much was realized from the sale of Motor vehicle registration KAH 340R before the notice to show cause can be dealt with, hence a stay of execution should be given.
On its part, the Respondent is of the view that the application is wrongly premised in that order XX rule 16 only relates to decrees or judgments in respect of accounts.
I have considered the arguments for and against the motion. I have also perused the facts deponed on affidavits in support and against the motion. It is clear in my mind that the reasons advanced in support of the motion are actually grounds in response to the notice to show cause. The provisions of the law cited do not apply to the application now before this court. Let the applicant raise the issues he is now telling this court before the court dealing with the notice to show cause dated 8th August 2004. Consequently the motion is ordered dismissed with costs to the Respondent.
Dated and delivered at Mombasa this 4th day of October, 2006.
J.K. SERGON
J U D G E