[2021] KEHC 9140 (KLR)
The court found that the appellant had previously sought similar orders for stay of execution and payment of the decretal sum by instalments, which were dismissed by both the lower court and the High Court. The appellant did not appeal those dismissals. The present application, seeking substantially the same relief,...
Source-derived case information.
- Citation
- [2021] KEHC 9140 (KLR)
- Parties
- Appellant: Tulsi Construction Company Limited; Respondent: Kenya Airports Parking Services Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 354 of 2019
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution and Payment by Instalments
- Outcome
- application dismissed with costs to the respondent
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Execution, Res Judicata, Payment by Instalments, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tulsi Construction Company Limited
Appellant
Kenya Airports Parking Services Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution and Payment by Instalments
Legal Issues
- 1 Whether the appellant is entitled to a stay of execution pending determination of the application.
- 2 Whether the appellant can be allowed to pay the decretal sum by monthly instalments after previous similar applications were dismissed.
- 3 Whether the present application is barred by the doctrine of res judicata.
Ratio Decidendi
The court found that the appellant had previously sought similar orders for stay of execution and payment of the decretal sum by instalments, which were dismissed by both the lower court and the High Court. The appellant did not appeal those dismissals. The present application, seeking substantially the same relief, is therefore barred by the doctrine of res judicata as codified in Section 7 of the Civil Procedure Act. Entertaining the application would amount to an abuse of the court process. Consequently, the application was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application dated 13th October, 2020 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 354 OF 2019
TULSI CONSTRUCTION COMPANY LIMITED........APPELLANT
VERSUS
KENYA AIRPORTS PARKING
SERVICES LIMITED...................................................RESPONDENT
RULING
There is before me an application dated 13th October, 2020 seeking an order to have counsel come on record, stay of execution pending the determination of the application and that the applicant be allowed to pay the decretal sum by monthly instalments set out therein.
The application is under Article 50 (1) and 25 (c) of the Constitution, Sections 3A and 1A of the Civil Procedure Act, Order 42 rule 32 and Order 51 of the Civil Procedure Rules.
Grounds have been set out on the face of the application together with a supporting affidavit. The application is opposed and there is a replying affidavit sworn in that respect. I have also the submissions of the parties which I have considered alongside some authorities.
This is not the first time the applicant has moved the court in respect of the same matter. After the lower court ruling delivered on 28th May 2019, the appellant made an application for stay of execution and leave to pay the decretal sum by instalments. That application was dismissed on 30th April 2020. The appellant did not appeal that decision.
The appellant then moved to the High Court and filed the application dated 24th June 2019 seeking a stay of execution of the lower court ruling. That application was dismissed in the ruling dated 27th November, 2019.
In the present application, prayer d) is more or less the same as the one sought in the lower court and dismissed. Having failed to appeal the lower court ruling, it is not open to the appellant to seek the same orders in this application. I find the matter is res judicata and Section 7 of the Civil Procedure Act solidifies that position. To hold otherwise will amount to abuse of the court process. The end result is that this application is dismissed with costs to the respondent.
Dated, signed and delivered at Nairobi this 11th day of February, 2021.
A. MBOGHOLI MSAGHA
JUDGE