[2005] KEHC 1463 (KLR)
The court found that the defendant's application for stay of execution and enlargement of time to appeal was unopposed, and the supporting affidavit established sufficient grounds for the orders sought. The absence of the plaintiff and lack of opposition to the application meant the defendant's case was uncontested....
Source-derived case information.
- Citation
- [2005] KEHC 1463 (KLR)
- Parties
- Plaintiff: Twiga Paints Limited; Defendant: Murphy Marketing Services Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 213 of 2002
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Applications for Stay of Execution and Enlargement of Time to Appeal
- Outcome
- Defendant's application allowed; plaintiff's application dismissed for non-attendance.
- Judges
- MM Kasango
- Legal Topics
- Stay of Execution, Enlargement of Time, Exparte Judgment, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Twiga Paints Limited
Plaintiff
Murphy Marketing Services Ltd
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Applications for Stay of Execution and Enlargement of Time to Appeal
Legal Issues
- 1 Whether the defendant is entitled to a stay of execution of the decree pending appeal.
- 2 Whether the defendant should be granted enlargement of time to file an appeal against the decision of the deputy registrar.
- 3 Whether the plaintiff's application should be dismissed for non-attendance.
Ratio Decidendi
The court found that the defendant's application for stay of execution and enlargement of time to appeal was unopposed, and the supporting affidavit established sufficient grounds for the orders sought. The absence of the plaintiff and lack of opposition to the application meant the defendant's case was uncontested. The court exercised its discretion to grant a stay of execution of the decree pending the intended appeal and to enlarge the time for filing the appeal against the decision of the deputy registrar. The plaintiff's application was dismissed for non-attendance, and the defendant was awarded costs for its application.
Court Disposition
Defendant's application allowed; plaintiff's application dismissed for non-attendance.
Orders
- Stay of execution of the decree vide the warrant of arrest issued on 25th May 2005 is granted pending the intended appeal.
- Time for filing the intended appeal against the decision of the deputy registrar of 21st October 2003 is enlarged; appeal to be lodged within seven days from the date of this ruling.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI COMMERCIAL DIVISION, MILIMANI Civil Suit 213 of 2002
TWIGA PAINTS LIMITED…………………………….……PLAINTIFF VERSUS MURPHY MARKETING SERVICES LTD………….…..DEFENDANT
RULING
When this matter appeared before court on 1st July 2005 the court ordered that two applications, one filed by the plaintiff and dated 24th June 2005, the other filed by the defendant dated 16th June 2005 be heard together on 28th July 2005.
On 28th July only the defendant attended court, the plaintiff was absent despite that date having been given in the presence of plaintiff’s counsel.
On 28th July 2005 the defendant argued its application dated 16th June 2005 and sought only prayers No. 4 and 5.
The defence counsel relied on the supporting affidavit ofJERSHON ANGADO DULO, which set out the circumstances under which exparte judgment was entered against the defendant and also the circumstances under which the execution was levied against it. The defendant seeks stay of execution of decree pending appeal and an order for enlargement of time of filing an appeal.
The court has considered counsel’s submissions and the affidavit in support of the application. Since there was no opposition to the said application I find that the defendant’s application is merited.
I accordingly grant the defendant the following orders: -
(1) That this court does grant the defendant stay of execution of the decree vide the warrant of arrest issued on 25th May 2005 in this matter pending the intended appeal.
(2) That the court hereby does enlarge the time within which to file the intended appeal against the decision of the deputy registrar of 21st October 2003, such appeal shall be lodged within seven days from this date hereof.
(3) The plaintiff’s application dated 24th June 2005 is dismissed with costs for non-attendance.
(4) The defendant is awarded costs of the application dated 16th June 2005.
Dated and delivered this 29th July 2005.
MARY KASANGO
JUDGE