[2024] KEHC 2407 (KLR)
The court found that the application for stay of execution had already been dispensed with on 15th March, 2023, when a conditional stay was granted upon deposit of half the decretal sum, which the applicant complied with. Therefore, there was no need to address the stay application further. As for the request to set...
Source-derived case information.
- Citation
- [2024] KEHC 2407 (KLR)
- Parties
- Appellant: John Mwangi Wambugu; Respondent: Matthew Chege Kiarie
- Court
- High Court
- Court Station
- High Court at Kiambu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E070 of 2023
- Procedural Posture
- Civil Appeal / Directions
- Outcome
- Directions issued for disposal of the appeal; no further orders on stay of execution or setting aside judgment at this stage.
- Judges
- DO Chepkwony
- Legal Topics
- Stay of Execution, Setting Aside Judgment, Appeal Directions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Mwangi Wambugu
Appellant
Matthew Chege Kiarie
Respondent
Procedural Posture
Civil Appeal / Directions
Legal Issues
- 1 Whether the court should set aside the ex parte interlocutory judgment and all consequential orders and decree.
- 2 Whether a stay of execution of the decree should be granted pending the hearing and determination of the appeal.
Ratio Decidendi
The court found that the application for stay of execution had already been dispensed with on 15th March, 2023, when a conditional stay was granted upon deposit of half the decretal sum, which the applicant complied with. Therefore, there was no need to address the stay application further. As for the request to set aside the ex parte judgment, the court held that this issue goes to the merits of the appeal and cannot be determined at this stage, prior to directions for the hearing of the appeal. The court thus proceeded to give directions for the disposal of the appeal, including a mention date for parties to take directions.
Court Disposition
Directions issued for disposal of the appeal; no further orders on stay of execution or setting aside judgment at this stage.
Orders
- Mention on 8th February, 2024 for parties to take directions on the disposal of the appeal.
- Notice to issue upon parties and/or counsel.
Full Case Text
Judgment text and source record
19 paragraphs
Wambugu v Kiarie (Civil Appeal E070 of 2023) [2024] KEHC 2407 (KLR) (16 January 2024) (Directions)
Neutral citation: [2024] KEHC 2407 (KLR)
Republic of Kenya
In the High Court at Kiambu
Civil Appeal E070 of 2023
DO Chepkwony, J
January 16, 2024
Between
John Mwangi Wambugu
Appellant
and
Matthew Chege Kiarie
Respondent
Directions
1. What is before the court is the Notice of Motion Application dated 15th March, 2023 filed under Order 42 rule 6 (1) and 51 of the Civil Procedure Rules and Article 48 of the Constitution of Kenya 2010.
2. The Application seeks the following orders:a.Spent;b.Spent;c.That the exparte interlocutory Judgment entered on 19th September, 2019 and all consequential orders and Decree be set aside and the applicants be granted leave to file defence.d.That there be a stay of execution of the decree unconditionally or upon such reasonable terms pending the hearing and determination of the Applicants’ appeal.e.That costs of this application be provided for.
3. The court has noted that the Application was dispensed with on 15th March, 2023 when the court gave conditional stay of execution that half of the decretal sum to be deposited in court. The court further notes that this condition was complied with as there is a deposit slip confirming payment of Kshs. 226,109/= . In view of this, the court finds that there is no need to deal with the application for stay of execution.
4. On the orders seeking to have the Judgment set aside, the court finds that this goes to the merits of the Appeal which this court cannot address at this juncture until Directions for hearing of the Appeal have been given. In the circumstances upon delivery of this Ruling, this court proceeds to give directions for the disposal of the Appeal in the following terms:-a.Mention on 8th February, 2024 for parties to take directions on the disposal of Appeal.b.Notice to issue upon parties and or counsel.It is so ordered.
RULING DELIVERED, DATED AND SIGNED AT KIAMBU THIS 16TH DAY OFJANUARY, 2024. D. O. CHEPKWONYJUDGEIn the presence of:No appearance for and by either partyCourt Assistant – Martin/Kinyua