[2013] KEHC 5749 (KLR)
The court found that the applicant had already been granted ample time to deposit the decretal sum and had not demonstrated sufficient cause for a further extension. The court also held that providing a log book as alternative security was not appropriate in the circumstances, given the history of the matter and the...
Source-derived case information.
- Citation
- [2013] KEHC 5749 (KLR)
- Parties
- Applicant: Stephene Gitahi; Applicant: Stegi Building Construction Ltd.; Respondent: Boaz Adagala Lumwagi T/A Boada Investment
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 35 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time and Alternative Security
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Stay of Execution, Extension of Time, Security for Decretal Sum
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephene Gitahi
Applicant
Stegi Building Construction Ltd.
Applicant
Boaz Adagala Lumwagi T/A Boada Investment
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time and Alternative Security
Legal Issues
- 1 Whether the applicant should be granted an extension of time to deposit the decretal sum.
- 2 Whether the applicant should be allowed to provide a log book as alternative security instead of depositing the decretal sum.
Ratio Decidendi
The court found that the applicant had already been granted ample time to deposit the decretal sum and had not demonstrated sufficient cause for a further extension. The court also held that providing a log book as alternative security was not appropriate in the circumstances, given the history of the matter and the applicant's delay. The application for extension of time and for alternative security was therefore dismissed for lack of merit.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application dated 19.12.2012 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
MISC. CIVIL APPLICATION NO. 35 OF 2012
STEPHENE GITAHI …………..…………………………….. 1ST APPLICANT
STEGI BUILDING CONSTRUCTION LTD. …..........……… 2ND APPLICANT
V E R S U S
BOAZ ADAGALA LUMWAGI
T/A BOADA INVESTMENT …..…..………………………… RESPONDENT
R U L I N G
The applicant filed an application dated 11. 7.2012 seeking leave to appeal out of time as well as stay of execution of the decree in Kakamega CMCC No.542 of 2010. The applicant was granted a stay of execution of 30 days. On 19. 12. 2012 he filed an application seeking to extend the period by another 90 days or in the alternative he be allowed to provide a Log Book as an alternative security instead of depositing the decretal sum. The application is supported by his affidavit sworn on the same date. Parties agreed to rely on the documents on record. The respondent filed an affidavit sworn on the 25. 2.2013.
The applicant’s contention is that he would like to have the period he was given to deposit the decretal sum increased by a further 90 days. On the 22. 2.2012 the court granted an interim order of stay pending the hearing of this application. Since then the 90 day period requested by the applicant has elapsed and if his request was genuine he should have deposited the decretal sum as of now. The issue of providing an alternative security is rejected. I have gone through the pleadings before the trial magistrate and I do find that allowing an alternative security is not appropriate in this case. The initial application for stay of execution was done way back in July. The judgment of the trial court was delivered on 18. 5.2012 and it is now over one year since then. The applicant has had ample time to settle the debt.
In the end, I do find that the application dated 19. 12. 2012 lacks merit and the same is hereby dismissed with costs to the respondent.
Delivered, dated and signed at Kakamega this 13th day of June 2013
SAID J. CHITEMBWE
J U D G E