[2021] KEHC 3667 (KLR)
The court found that the prayers sought in the application and the supporting affidavit and grounds were not in support of each other. This inconsistency rendered the application incompetent. As a result, the court declined to consider the merits of the application and struck it out with costs to the respondents.
Source-derived case information.
- Citation
- [2021] KEHC 3667 (KLR)
- Parties
- Applicant: Twiga Properties Ltd; Respondent: Joyce Muragi Njagi t/a Crossworld Institute of Professional Studies; Respondent: George N. Muiruri t/a Leakey Auctioneers
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application E150 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
- Outcome
- application struck out as incompetent with costs to the respondents
- Legal Topics
- Stay of Execution, Leave to Appeal Out of Time, Striking Out Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Twiga Properties Ltd
Applicant
Joyce Muragi Njagi t/a Crossworld Institute of Professional Studies
Respondent
George N. Muiruri t/a Leakey Auctioneers
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
Legal Issues
- 1 Whether the application for stay of execution and leave to appeal out of time is competent in light of inconsistencies between the prayers sought and the supporting affidavit.
- 2 Whether the court should grant the orders sought in the notice of motion dated 25th March 2021.
Ratio Decidendi
The court found that the prayers sought in the application and the supporting affidavit and grounds were not in support of each other. This inconsistency rendered the application incompetent. As a result, the court declined to consider the merits of the application and struck it out with costs to the respondents.
Court Disposition
application struck out as incompetent with costs to the respondents
Orders
- The application dated 25th March 2021 is struck out as incompetent.
- The applicant shall pay the costs of the application to the respondents.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL DIVISION
MISC. CIVIL APPLICATION NO. E150 OF 2021
TWIGA PROPERTIES LTD...............................................................................................................................APPLICANT
VERSUS
JOYCE MURAGI NJAGI T/A CROSSWORLD INSTITUTE OF PROFESSIONAL STUDIES...1ST RESPONDENT
GEORGE N. MUIRURI T/A LEAKEY AUCTIONEERS....................................................................2ND RESPONDENT
RULING
1. This ruling is in respect of the notice of motion dated 25th March 2021 which seeks the following orders:
i) Spent
ii) THAT the honourable court be pleased to grant an order of stay of execution of the Judgment and decree of the honourable court issued on 7th May 2018.
iii) THAT the Honourable court be pleased to grant leave to the applicant to file an Appeal out of time against the Judgment and decree of Hon. E.K Usui, Senior Principal Magistrate issued on 7th May 2018 in Milimani CMCC 9038 of 2007.
iv) THAT the costs of this application be provided for.
2. The application is supported by the grounds on its face plus the supporting affidavit of Mr. Ramila Chouhan the applicant’s manager.
3. The 1st respondent filed a replying affidavit sworn on 10th May 2021.
4. The application was argued orally by counsel for both parties.
5. I have carefully considered the application, grounds, affidavits and annextures, alongside the submissions. The prayers sought in this application are in respect of a judgment and decree issued by Hon. E. K Usui Senior Principal Magistrate on 7th May 2018 in Milimani CMCC No. 0038 of 2007.
6. A reading of the supporting affidavit and the grounds reveals that the application is in respect of a Ruling delivered on 21st February 2020 by Hon. L. Gichera Chief Magistrate. Mr. Nderitu in his rejoinder to the submissions by M/s Ndinda confirmed that the application is in respect of the Ruling of 21st February 2020.
7. That being the case I shall not even get into the merits of the application. The prayers sought and the supporting affidavit and grounds are not in support of each other. I find the application to be incompetent and strike it out with costs.
DELIVERED ONLINE, SIGNED AND DATED THIS 30TH DAY OF SEPTEMBER, 2021 IN OPEN COURT AT MILIMANI NAIROBI.
H. I. ONG’UDI
JUDGE