[2023] KEHC 2149 (KLR)
The court found that the applicant failed to comply with the conditional orders for stay of execution issued on November 24, 2022, specifically by not depositing the decretal sum in a joint interest-earning account and not filing a record of appeal within the prescribed time. The applicant also failed to attend...
Source-derived case information.
- Citation
- [2023] KEHC 2149 (KLR)
- Parties
- Applicant: Alice Wanjiru Wachaga; Respondent: Emmanuel Wakhungu t/a Diwawe Construction Company
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E304 of 2022
- Procedural Posture
- Civil Appeal / Ruling on Compliance With Conditional Stay Orders
- Outcome
- Stay of execution lapsed due to non-compliance by the applicant.
- Judges
- DO Chepkwony
- Legal Topics
- Stay of Execution, Appeals Process, Non Compliance With Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alice Wanjiru Wachaga
Applicant
Emmanuel Wakhungu t/a Diwawe Construction Company
Respondent
Procedural Posture
Civil Appeal / Ruling on Compliance With Conditional Stay Orders
Legal Issues
- 1 Whether the applicant complied with the conditional stay orders issued on November 24, 2022.
- 2 Whether the stay of execution should lapse due to non-compliance by the applicant.
Ratio Decidendi
The court found that the applicant failed to comply with the conditional orders for stay of execution issued on November 24, 2022, specifically by not depositing the decretal sum in a joint interest-earning account and not filing a record of appeal within the prescribed time. The applicant also failed to attend court or provide any explanation for the non-compliance. In accordance with the default clause in the earlier ruling, the stay of execution automatically lapsed due to the applicant's non-compliance. The court therefore invoked the default clause and declared the stay of execution as lapsed.
Court Disposition
Stay of execution lapsed due to non-compliance by the applicant.
Orders
- The order for stay of execution issued herein has lapsed.
Full Case Text
Judgment text and source record
23 paragraphs
Wachaga v Wakhungu t/a Diwawe Construction Company (Civil Appeal E304 of 2022) [2023] KEHC 2149 (KLR) (Civ) (9 February 2023) (Ruling)
Neutral citation: [2023] KEHC 2149 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Civil
Civil Appeal E304 of 2022
DO Chepkwony, J
February 9, 2023
Between
Alice Wanjiru Wachaga
Applicant
and
Emmanuel Wakhungu t/a Diwawe Construction Company
Respondent
Ruling
1. This matter is for mention for parties to confirm compliance with orders and or directions issued vide a ruling delivered on November 24, 2022.
2. Upon listening to counsel for the respondent, it is confirmed that the applicant has not attended court, either by herself and her counsel. There is even no representation to explain the absence.
3. Further, it is confirmed that the applicant has not complied with orders which were issued vide the ruling dated November 24, 2022 as there is no evidence to confirm that the decretal sum has been deposited in a joint-interest-earning account to be held by both advocates for the parties neither has the applicant filed and served a record of appeal.
4. Although the ruling was delivered in the absence of the applicant, the same had been cause-listed and the same posted on the divisions portal. And so was the mention date for today.
5. The applicant vide a notice of motion application dated May 30, 2022 sought for stay of execution of the Judgment and decree in SCC COMM No E895 of 2022 and all consequential orders thereto pending the hearing and determination of the appeal. The same was allowed but on condition the appellant deposits the entire decretal sum in a joint interest-earning account of both court for the parties within 45 days and files a record of appeal within 30 days from the date of ruling. It was further ordered that if the applicant failed to comply with the said orders then the order of stay of execution would automatically lapse.
6. The appellant has not complied with order(a) and (b) of the ruling delivered on November 24, 2022. The appellant has also failed to attend court or offer any explanation for non-compliance of the said orders.
7. In view of the non-compliance with orders issued vide a ruling delivered on November 24, 2022, the default Clause at order No(d) of the ruling delivered on November 24, 2022 be and is hereby invoked. Subsequently, the order for stay of execution issued herein has lapsed.It is so ordered.
RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 9TH DAY OF FEBRUARY, 2023. D. O. CHEPKWONYJUDGEIn the presence of:M/S Waringa counsel for RespondentNo appearance for and by AppellantCourt Assistant - Simon