[2019] KEHC 10254 (KLR)
The court determined that it could not properly exercise its discretion to grant or maintain a stay of execution without the lower court's ruling for stay of execution. Therefore, the applicant was ordered to file and serve a further affidavit annexing the said ruling within seven days. The court further ordered...
Source-derived case information.
- Citation
- [2019] KEHC 10254 (KLR)
- Parties
- Applicant: Trans-Mara Sugar Co. Ltd.; Respondent: Thomas Ondieki Ositu
- Court
- High Court
- Court Station
- High Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 256 of 2018
- Procedural Posture
- Miscellaneous Application / Interlocutory Order on Further Affidavit and Stay of Execution
- Outcome
- interlocutory orders issued; further affidavit required; conditional stay of execution maintained
- Judges
- AC Mrima
- Legal Topics
- Stay of Execution, Affidavit Filing, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Trans-Mara Sugar Co. Ltd.
Applicant
Thomas Ondieki Ositu
Respondent
Procedural Posture
Miscellaneous Application / Interlocutory Order on Further Affidavit and Stay of Execution
Legal Issues
- 1 Whether the court can exercise judicial discretion to grant or maintain a stay of execution without the lower court's ruling.
- 2 Whether the applicant should be compelled to file a further affidavit introducing the missing ruling.
Ratio Decidendi
The court determined that it could not properly exercise its discretion to grant or maintain a stay of execution without the lower court's ruling for stay of execution. Therefore, the applicant was ordered to file and serve a further affidavit annexing the said ruling within seven days. The court further ordered that the existing stay of execution would automatically lapse if the applicant failed to comply. This approach ensures that the court's discretion is exercised on a complete record and that parties comply with procedural requirements for interlocutory relief.
Court Disposition
interlocutory orders issued; further affidavit required; conditional stay of execution maintained
Orders
- The applicant shall file and serve a further affidavit annexing the lower court's ruling within 7 days.
- The stay of execution shall automatically lapse if the further affidavit is not filed as ordered.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT MIGORI
MISC CIVIL APPLN NO. 256 OF 2018
TRANS-MARA SUGAR CO. LTD..........................APPLICANT
-VERSUS-
THOMAS ONDIEKI OSITU................................RESPONDENT
ORDER
1. I have perused and considered the record before me and I am of the view that I will not be able to sufficiently exercise my judicial discretion in the absence of a copy of the ruling for stay of execution of the decree delivered by the lower court on 08/03/2018.
2. Consequently, I hereby make the following further orders: -
(a) The Applicant shall file and serve a Further Affidavit and introduce a copy of the ruling therein within 7 days of this order.
(b) Given that this matter has been in Court since March 2018 the stay of execution orders shall automatically lapse on failure to file the said Further Affidavit as ordered.
(c) Mention for further orders on 21/02/2019.
Orders accordingly.
DELIVERED, DATED and SIGNED at MIGORI this 14th day of February 2019.
A. C. MRIMA
JUDGE
Judgment delivered in open Court and in the presence of: -
Mr. Oguttu-Mboya Counsel instructed by the firm of Messrs. Oguttu Mboya & Company Advocates for the Applicant.
Mr. OdingoCounsel instructed by the firm of Odingo & Company Advocates for the Respondent.
Evelyn Nyauke– Court Assistant