[2013] KEHC 1705 (KLR)
The court held that the order dismissing the appellant's application to set aside the ex parte judgment was a negative order incapable of being stayed. The court reasoned that staying such an order would not reinstate the appellant's application or provide any interlocutory relief, as the dismissal did not grant any...
Source-derived case information.
- Citation
- [2013] KEHC 1705 (KLR)
- Parties
- Appellant: Tom Owiti; Respondent: Guilderberto Cuturi
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 91 of 2013
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution
- Outcome
- application dismissed
- Judges
- MM Kasango
- Legal Topics
- Stay of Execution, Exparte Judgment, Setting Aside Orders, Negative Orders, Magistrates Court Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tom Owiti
Appellant
Guilderberto Cuturi
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution
Legal Issues
- 1 Whether a negative order dismissing an application to set aside an ex parte judgment is capable of being stayed.
- 2 Whether the appellant's application for stay of execution is misconceived in law.
Ratio Decidendi
The court held that the order dismissing the appellant's application to set aside the ex parte judgment was a negative order incapable of being stayed. The court reasoned that staying such an order would not reinstate the appellant's application or provide any interlocutory relief, as the dismissal did not grant any positive benefit to the respondent that could be executed. The court relied on established case law confirming that negative orders, such as dismissals, are not subject to stay of execution. Consequently, the appellant's application for stay was found to be misconceived and was dismissed with costs to the respondent.
Court Disposition
application dismissed
Orders
- The Notice of Motion dated 5th August 2013 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL APPEAL NO. 91 OF 2013
(Being an appeal from the Judgment of Hon. E. K. Usui in Kwale PMCC NO. 89 of 2011 delivered on 25th July, 2013)
TOM OWITI ……………………………...……………………. APPELLANT
V E R S U S
GUILDERBERTO CUTURI …………….…………………… RESPONDENT
RULING
Appellant seeks stay of execution of the judgment of SRMCC Kwale being Civil Case No. 89 of 2011. That judgment was entered exparte in default of an appearance of the Appellant.
Appellant filed an application before the Kwale Magistrate's Court seeking to set aside that judgment which application was dismissed on 25th July 2013. It is clear for both the Respondents and Appellants affidavit that the application was dismissed following the Appellant’s or his Counsel's failure to attend Court on the date of hearing.
That dismissal is the subject of this appeal. The Appellant strangely by his Notice of Motion dated 5th August 2013 seeks stay of the order of the Kwale Magistrate's Court issued on 7th August 2013. From the Appellant's own exhibits attached to its Motion before this Court it would seem that the Order issued by the Kwale Magistrate's Court on 7th August 2013 was the order that dismissed his application to set aside the exparte judgment.
That dismissal was a negative order incapable of being stayed. Even if it is stayed it will not reinstate the Appellant's application to set aside the exparte judgment of the Kwale Magistrate's Court. The fact that a negative order is incapable of being stayed has been interrogated by Courts. In the case MUNICIPAL COUNCIL OF MOMBASA -VS- SUMMIT COVE LINES COMP. LTD CIVIL APPL. NO. NAI 26 OF 2011it was stated-
“The order of 4th February, 2011 dismissing the application to stay or discharge the order of 31st January 2011 was a negative order which is not capable of being stayed.”
Also in the case of ANDREW OUKO -VS- KENYA COMMERCIAL BANK LTD & 3 OTHERS NAIROBI HCCC NO. 558 OF 2004 the Court stated-
“As their Lordship said in the case of VENTURE CAPITAL & CREDIT LIMITED –VS- CONSOLIDATED BANK OF KENYA CIVIL APP. NO. NAI. 349 OF 2003 (UR), “the prayer for order of stay of execution of the ruling is misconceived as the learned Judge never made any positive order in favour of the Respondent which is capable of execution. Rather, the learned Judge merely dismissed the application for interlocutory injunction with the result that neither party was given any interlocutory relief.”
Similarly, in the case EXCLUSIVE ESTATE LTD -VS- KENYA POST AND
TELECOMMUNICATION & ANOTHER (2005)I E.A. 53 the Court stated-
“The order which dismissed the suit was a negative order which is not capable of execution.”
On that basis alone the Notice of Motion dated 5th August 2013 is misconceived and is dismissed with costs to the Respondent.
Dated and delivered at Mombasa this 31st day of October, 2013.
MARY KASANGO
JUDGE