[2013] KEHC 2996 (KLR)
The court found that the defendant had complied with the conditional stay of execution order by executing and filing the required bond within the extended time agreed upon by both parties. The court noted that active negotiations towards settlement were ongoing, as evidenced by correspondence and a draft discharge...
Source-derived case information.
- Citation
- [2013] KEHC 2996 (KLR)
- Parties
- Plaintiff: Toyoi Investment Ltd; Defendant: Uchumi Supermarket Ltd
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Case 164 of 2000
- Procedural Posture
- Miscellaneous Application / Ruling on Compliance With Conditional Stay and Status Quo Pending Settlement Negotiations
- Outcome
- Status quo to be maintained; execution stayed pending settlement negotiations.
- Legal Topics
- Stay of Execution, Settlement Negotiations, Conditional Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Toyoi Investment Ltd
Plaintiff
Uchumi Supermarket Ltd
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Compliance With Conditional Stay and Status Quo Pending Settlement Negotiations
Legal Issues
- 1 Whether the defendant complied with the conditional stay of execution order granted by the court.
- 2 Whether the plaintiff is entitled to proceed with execution while settlement negotiations are ongoing.
- 3 Whether the bond executed by the defendant was filed within the time allowed by the court.
Ratio Decidendi
The court found that the defendant had complied with the conditional stay of execution order by executing and filing the required bond within the extended time agreed upon by both parties. The court noted that active negotiations towards settlement were ongoing, as evidenced by correspondence and a draft discharge voucher. In these circumstances, it would not be prudent for the plaintiff to proceed with execution or threaten execution while negotiations continued. The court therefore ordered that the status quo be maintained, allowing negotiations to proceed, and held that execution should only occur upon settlement or, if no agreement is reached, in accordance with the judgment and...
Court Disposition
Status quo to be maintained; execution stayed pending settlement negotiations.
Orders
- Status quo to be maintained pending conclusion of settlement negotiations.
- Execution to proceed only upon settlement or if parties fail to agree, in accordance with the judgment.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT ELDORET
HCC NO. 164 OF 2000
TOYOI INVESTMENT LTD …....................................................... PLAINTIFF
=VERSUS=
UCHUMI SUPERMARKET LTD …................................................ DEFENDANT
RULING
Mr. Kibichiy has come on record holding brief for Mr. Fraser,advocate for the Defendant. He informed Court that the purpsoe of Court attendance and filing of the Notice of Motion dated 18th day of July, 2013 was so as to confirm that the Defendant had complied with the orders granted by Hon. Juistice F. Ochieng on 29/04/2013 pursuant to an application by the Defendant seeking orders of stay of execution.
According to Mr. Kibichiy, the Defendant had fully complied with orders of conditional stay of execution as directed.
In particualar, he submitted that the Defendant had executed a bond of over Kshs 40 million and filed it in Court and urged the Court to order the status quo be maintained. He also expressed fears that, nothwithstanding that the bond had been executed, the Plaintiff had commenced execution proceedings.
Mr. Kimani, holding brief for A.G.N Kamau, advocate for the Plaintiff on the other hand submitted that, although the bond was executed, it was so executed out of the time limit given by the Court. That therefore, nothing prevents the Plainitff from executing.
From the brief submissions by the respective counsel, it is apparent that both parties are negotiating a settlement. Annexed to the Replying Affidavit sworn by Allan George Njogu Kamauadvocate sworn on 23/7/2013 is a Draft Discharge voucher and a proposed consent settling the matter dated 18/06/2013, forwarded by counsel for the Defendant to counsel for the Plaintiff for consideration vide a letter dated 18/06/2013, marked annexture '5'. In response, counsel for the Plaintiff wrote a letter dated 19/06/2013 to counsel of the Defendant confirming that the draft Discharge Voucher and Consent letter were acceptable. This letter is marked annexture '6' attached to Replying Affidavit.
The succeeding annextures all demonstrate the intense negotiations undertaken towards having the matter settled. Infact, a duly executed Discharge Voucher is marked as Exhibit 10 B. The latest correspondence relate to the final stages of executing the consent for filing in Court which appears not yet settled.
In view of the foregoing, I think, it would not be prudent for the Plaintiff to execute or threaten to execute when negotiations are still on-going.
Of paramount importance is that the Defendant has already executed the bond as ordered by the Court. The bond was was duly executed on 15/05/2013 and filed in Court on 21/05/2013. The Court ordered that the bond be executed within 15 days of the ruling (29/04/2013). But by a Consent signed by Counsel for both parties, parties agreed to extend time within which to file the bond by a further 14 days. Ultimately, therefore, the bond having been filed on 21/05/2013, was filed within time.
I accordingly find that the Defendant has not failed to fulfil any of the conditions given by the Honourable judge in his ruling of 29/04/2013. The said Judge had requested that the matter be mentioned before him to confirm compliance with his orders. In his absence, however, I have had to deal with this issue.
The status quo should therefore be maintained, save to add that parties should continue with their negotiations towards settlement of the matter. It is upon settlement that execution should proceed as against the agreed sum. And if parties do not agree, the Judgment of the Court cushions the Plaintiff, in the event that the Defendant does not prefer an appeal.
DATED AND DELIVERED AT ELDORET THIS 25TH DAY OFJULY 2013.
G.W. NGENYE-MACHARIA
JUDGE
25/07/2013
In the presence of:
Mr. Kibichiy Advocate holding brief for Mr. Fraser Advocate for the Defendant/Applicant and Mr. Kimani Advocate holding brief for M/s A.G.N. Kamau,Advocate for the Plaintiff/Respondent.