Background and Introduction
1. I have carefully considered the application dated 22nd October 2024 brought by the judgment debtor. The application seeks the following reliefs:
i. Stay of execution or further execution of the decree issued on 13th October 2023, as well as the execution proceedings arising therefrom;
ii. An order compelling the supply of reasons for the taxation of costs, as requested in the Notice of Objection dated 18th June 2024, within 14 days;
iii. Leave to file a reference out of time against the decision of the Taxing Officer delivered on 12th June 2024.
2. The application is opposed through a replying affidavit sworn by CHRISTINE GITHII on behalf of the decree holder.
Analysis and Determination
3. Upon consideration of the pleadings and submissions filed, I agree with the decree holder that the prayer for stay of execution is res judicata. In its ruling dated 4th March 2024, this Court granted a conditional stay of execution on the express terms that the judgment debtor was to deposit the entire decretal amount in an interest-earning account in the names of both parties within 30 days.
4. The decree holder submits, and the judgment debtor does not dispute, that the said condition was not met. It was only after this non-compliance was brought to the attention of the Court by the decree holder that the judgment debtor offered, through a supplementary affidavit, to deposit the title deed to L.R. No. MAVOKO TOWN BLOCK 2/1401 as security. This offer does not satisfy the terms of the conditional stay earlier granted.
5. Moreover, although the judgment debtor contends that an appeal has been filed, no evidence of such an appeal has been presented. In any event, the mere filing of an appeal does not of itself operate as a stay of execution.
6. In the circumstances, I find that the judgment debtor has not made out a case for the grant of a further stay of execution. The conduct of the judgment debtor shows non-compliance with Court orders without justification. No sufficient explanation has been tendered for the failure to comply with the earlier court orders, and the applicant does not, in the circumstances, merit further indulgence. Accordingly, the prayer for stay of execution is declined, and any interim orders of stay earlier granted are hereby vacated.
7. On the issue of the reasons for taxation, I have reviewed the ruling of the Taxing Officer dated 12th June 2024. I find that the reasons are already incorporated within the decision. The request for reasons is therefore rendered moot.
8. As regards the prayer for leave to file a reference out of time, I note that the decree holder does not oppose this prayer. I accordingly allow the same, but on condition that the reference shall be filed within 14 days from the date of this ruling, failing which the leave granted shall lapse automatically.
Final Orders
9. Accordingly,
a) The prayer for stay of execution is declined. Any interim orders of stay previously granted are hereby vacated.
b) The request for reasons for the ruling of the Taxing Officer dated 12th June 2024 is declined, the reasons being already incorporated in the said ruling.
c) Leave is granted to the applicant to file a reference out of time. The reference shall be filed within fourteen (14) days from the date of this ruling, failing which the leave granted shall automatically lapse without further reference to the Court.
d) Save as granted in Order 3 above, the application is otherwise dismissed.
e) The respondent shall have half the costs of the application.
Orders accordingly.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 18TH DAY OF JULY 2025.
F. MUGAMBI
JUDGE
1. I have carefully considered the application dated 22nd October 2024 brought by the judgment debtor. The application seeks the following reliefs:
i. Stay of execution or further execution of the decree issued on 13th October 2023, as well as the execution proceedings arising therefrom;
ii. An order compelling the supply of reasons for the taxation of costs, as requested in the Notice of Objection dated 18th June 2024, within 14 days;
iii. Leave to file a reference out of time against the decision of the Taxing Officer delivered on 12th June 2024.
2. The application is opposed through a replying affidavit sworn by CHRISTINE GITHII on behalf of the decree holder.
Analysis and Determination
3. Upon consideration of the pleadings and submissions filed, I agree with the decree holder that the prayer for stay of execution is res judicata. In its ruling dated 4th March 2024, this Court granted a conditional stay of execution on the express terms that the judgment debtor was to deposit the entire decretal amount in an interest-earning account in the names of both parties within 30 days.
4. The decree holder submits, and the judgment debtor does not dispute, that the said condition was not met. It was only after this non-compliance was brought to the attention of the Court by the decree holder that the judgment debtor offered, through a supplementary affidavit, to deposit the title deed to L.R. No. MAVOKO TOWN BLOCK 2/1401 as security. This offer does not satisfy the terms of the conditional stay earlier granted.
5. Moreover, although the judgment debtor contends that an appeal has been filed, no evidence of such an appeal has been presented. In any event, the mere filing of an appeal does not of itself operate as a stay of execution.
6. In the circumstances, I find that the judgment debtor has not made out a case for the grant of a further stay of execution. The conduct of the judgment debtor shows non-compliance with Court orders without justification. No sufficient explanation has been tendered for the failure to comply with the earlier court orders, and the applicant does not, in the circumstances, merit further indulgence. Accordingly, the prayer for stay of execution is declined, and any interim orders of stay earlier granted are hereby vacated.
7. On the issue of the reasons for taxation, I have reviewed the ruling of the Taxing Officer dated 12th June 2024. I find that the reasons are already incorporated within the decision. The request for reasons is therefore rendered moot.
8. As regards the prayer for leave to file a reference out of time, I note that the decree holder does not oppose this prayer. I accordingly allow the same, but on condition that the reference shall be filed within 14 days from the date of this ruling, failing which the leave granted shall lapse automatically.
Final Orders
9. Accordingly,
a) The prayer for stay of execution is declined. Any interim orders of stay previously granted are hereby vacated.
b) The request for reasons for the ruling of the Taxing Officer dated 12th June 2024 is declined, the reasons being already incorporated in the said ruling.
c) Leave is granted to the applicant to file a reference out of time. The reference shall be filed within fourteen (14) days from the date of this ruling, failing which the leave granted shall automatically lapse without further reference to the Court.
d) Save as granted in Order 3 above, the application is otherwise dismissed.
e) The respondent shall have half the costs of the application.
Orders accordingly.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 18TH DAY OF JULY 2025.
F. MUGAMBI
JUDGE