[2018] KEHC 1676 (KLR)
The court held that seeking or obtaining an order from the trial court to pay a decretal sum in instalments does not amount to an abuse of court process, nor does it extinguish or compromise the appellant's right to challenge the judgment or decree on appeal. The motions to dismiss the appeals on this basis were...
Source-derived case information.
- Citation
- [2018] KEHC 1676 (KLR)
- Parties
- Appellant: West Kenya Sugar Company Limited; Respondent: Fanuel Ekuomo Ashiembe
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 17 & 19 of 2018
- Procedural Posture
- Civil Appeal / Ruling on Motion to Dismiss Appeal as Abuse of Process
- Outcome
- applications dismissed with costs to the respondents
- Judges
- DN Musyoka
- Legal Topics
- Abuse of Process, Appeal Rights, Instalment Payment of Decretal Sum
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
West Kenya Sugar Company Limited
Appellant
Fanuel Ekuomo Ashiembe
Respondent
Procedural Posture
Civil Appeal / Ruling on Motion to Dismiss Appeal as Abuse of Process
Legal Issues
- 1 Whether seeking or obtaining an order from the trial court to pay a decretal sum in instalments constitutes an abuse of court process when an appeal is pending.
- 2 Whether obtaining such an order compromises the appellant's right to appeal the judgment or decree.
Ratio Decidendi
The court held that seeking or obtaining an order from the trial court to pay a decretal sum in instalments does not amount to an abuse of court process, nor does it extinguish or compromise the appellant's right to challenge the judgment or decree on appeal. The motions to dismiss the appeals on this basis were found to be misconceived and without merit, as there is no law prohibiting such actions by an appellant. The applications were therefore dismissed with costs to the respondents.
Court Disposition
applications dismissed with costs to the respondents
Orders
- The Motions dated 21st May 2018 are dismissed.
- Costs awarded to the respondents.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CIVIL APPEAL NO. 17 OF 2018
WEST KENYA SUGAR COMPANY LIMITED............................APPELLANT
VERSUS
FANUEL EKUOMO ASHIEMBE................................................RESPONDENT
AND
CIVIL APPEAL NO 19 OF 2018
WEST KENYA SUGAR COMPANY LIMITED..........................APPELLANT
VERSUS
FANUEL EKUOMO ASHIEMBE..............................................RESPONDENT
(Appeals arising from the judgments and decrees of the Hon. ML Shimenga, Senior Resident Magistrate, in Butere SRMCCC No. 59 of 2018 of 28th September 2017)
RULING
1. In the appeals herein are Motions dated 21st May 2018, seeking dismissal of the appeals for being an abuse of court process. Both applications came up for hearing on 16th July 2018. Counsel argued in HCCA No. 17 of 2018 on the understanding that the order made therein shall apply to HCCA No. 9 of 2018.
2. The applications are brought at the behest of the respondents. Their case is that the appellant herein moved the trial court and obtained an order to pay the decretal sum in instalments, while at the same time he moved this court and obtained leave to file appeal against the same decree of the trial court. He avers that the courts are thereby being taken round in circles and argues that that amounts to abuse of the process. It is submitted that the appeals are incompetent and bad in law.
3. On the other hand, the appellant argues that there is no abuse of court process
4. During the oral argument of the applications, counsel for the parties did not cite any statutory provisions or case law. The applications raise pure points of law, whether a party who is aggrieved by a decree or order of the trial court and intends to appeal against the same, can at the same time ask the trial court to allow him to liquidate the decretal sum in instalments. Put in another way, they pose the question whether obtaining an order from a trial court to settle a judgment amount in instalments compromises an intended or pending appeal. I would have expected that the parties, especially the respondents, would point me to the law, if any, which supports the proposition made in their Motions.
5. I am not aware of any bar to an intended appellant, and indeed an appellant who has a pending appeal, seeking or obtaining orders from the trial court to allow him to liquidate a judgement sum in instalments. I do not see how seeking or obtaining of such orders extinguishes the appellant’s right to challenge the same judgment or decree on appeal.
6. I need not say more. The Motions before me are misconceived and not merited. Their fate lies with dismissal, and I do hereby dismiss the same with costs to the respondents.
DATED, SIGNED and DELIVERED at KAKAMEGA this 3RD DAY OF DECEMBER, 2018
W. MUSYOKA
JUDGE