[2018] KEHC 4480 (KLR)
The court found that the absence of the applicant's counsel was due to a genuine and unavoidable circumstance (bereavement), as explained by an advocate holding brief. In the interests of justice and to prevent prejudice to the applicant, the court exercised its discretion to extend the interim stay of execution...
Source-derived case information.
- Citation
- [2018] KEHC 4480 (KLR)
- Parties
- Applicant: Vision Fund Kenya Ltd; Respondent: Yamuko Auctioneers
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 156 of 2018
- Procedural Posture
- Civil Suit / Interlocutory Application for Extension of Interim Stay
- Outcome
- Interim stay of execution extended; matter to be mentioned for further orders.
- Judges
- RE Aburili
- Legal Topics
- Interim Stay Orders, Urgent Applications, Adjournment Due to Counsel Absence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Vision Fund Kenya Ltd
Applicant
Yamuko Auctioneers
Respondent
Procedural Posture
Civil Suit / Interlocutory Application for Extension of Interim Stay
Legal Issues
- 1 Whether the interim stay of execution granted on 16.8.2018 should be extended in the absence of the applicant's counsel.
- 2 Whether the explanation for counsel's absence constitutes sufficient cause for adjournment and extension of orders.
Ratio Decidendi
The court found that the absence of the applicant's counsel was due to a genuine and unavoidable circumstance (bereavement), as explained by an advocate holding brief. In the interests of justice and to prevent prejudice to the applicant, the court exercised its discretion to extend the interim stay of execution until the matter could be mentioned before the duty judge in Kisumu. The court emphasized the need to balance procedural fairness with the right to be heard, especially where interim relief had already been granted and the applicant's absence was satisfactorily explained.
Court Disposition
Interim stay of execution extended; matter to be mentioned for further orders.
Orders
- Mr. Kimanga Advocate is allowed to hold brief for Mr. Mwamu Advocate.
- The matter shall be mentioned before the duty Judge in Kisumu on 12.9.2018 for further orders or directions.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
CIVIL SUIT NO. 156 OF 2018
VISION FUND KENYA LTD............................DECREE/HOLDER
VERSUS
YAMUKO AUCTIONEERS........................JUDGMENT/DEBTOR
( FORWARDED FOR HEARING BY D.R. KISUMU BEFORE VACATION DUTY JUDGE - SIAYA)
COURT RULING
I note that this matter is a Kisumu matter is a Kisumu matter which was filed under certificate of urgency and on 16. 8.2018, Hon. Jesse Njagi certified it urgent and granted an interim stay of Execution for 14 days and directed that the same be heard today.
However, Mr. Mwamu Counsel for the Applicant is not in Court and upon the Court calling out the matter and mentioning their Advocates on record, Mr. Kimanga Advocate from Kisumu offered to hold brief for Mr. Mwamu for the Applicant and informed the Court that he had learnt this Morning that Mr. Mwamu had lost his mother in the night hence the likely reason why he is not before the Court. He sought for extension of interim stay.
In view of the above explanation and circumstances, I hereby allow Mr. Kimanga Advocate to hold brief for Mr. Mwamu Advocate and accordingly, I direct that this matter shall be mentioned before the duty Judge in Kisumu on 12. 9.2018 for further orders or directions. In the interim, the stay orders granted by Hon. Justice Jesse Njagi on 16. 8.2018 shall be extended/remain in force until 12. 9.2018.
Orders accordingly.
Dated, Signed and Delivered at Siaya this 30th day of August, 2018.
R. E. ABURILI
JUDGE