RULING
(Notice of Motion dated 28th February 2024 by the 1st Respondent)
1. The 1st Respondent vide application by way of Notice of Motion dated 28th February 2024 approached the court under a certificate of urgency seeking the following orders:-
a. Spent
b. Spent
c. There be a stay of execution of the judgment dated 13th October 2022 and Decree dated 19th May 2023 together with the Proclamation Notice dated 5th October 2023 and the Warrants of Attachment issued on 21st September 2023 pending interpartes hearing and determination of this application.
d. The court be pleased to review and set aside the judgment dated 13th October 2023.
e. The Decree dated 19th May 2023 , Proclamation Notice dated 5th October 2023 and the Warrants of Attachment issued on 21st September 2023 be set aside.
f. The decretal sum be set off against payments already made and the balance thereafter be settled by way of monthly installments of Kshs. 20,000/- per month until payment in full.
g. Costs.
2. The Court certified the application urgent and ordered for interpartes hearing for today.
3. When the parties appeared in court the Applicant informed the court that they had just been served with the replying affidavit dated 11th March 2024 and wished to file reply.
4. The applicant further sought for the court to issue the interim order to stay the execution pending the application determination.
5. The Counsel for the Respondent opposed the grant of the interim order on the basis that judgment was issued in 2022 and further a similar application was filed by the respondent and dismissed for want of prosecution.
6. The court-ordered stay of execution pending the hearing of the application interpartes by way of written submissions of which directions were given and further informed parties that reasons for the Order would follow.
7. The court hereby proceeds to issue a reasoned ruling for the grant of the interim stay of execution.
8. The court considered that triable issues were raised in the application. The court had certified the application as urgent. It is the opinion of the court that the application would be rendered nugatory if the interim stay of execution is not granted as the claimant had in place warrants of attachment. Lastly, the court holds that is in the interest of justice for the court to grant the interim order of stay of execution pending its decision on the application.
9. The Court then affirms the interim order granted to be:-
a. A temporary order of stay of execution is Hereby issued of the judgment dated 13th October 2022 and Decree dated 19th May 2023 together with the Proclamation Notice dated 5th October 2023 and the Warrants of Attachment issued on 21st September 2023 pending interpartes hearing and determination of this Application.
10. It is so Ordered.
Dated , signed and delivered this 13th day of March 2024 at Kakamega
(Notice of Motion dated 28th February 2024 by the 1st Respondent)
1. The 1st Respondent vide application by way of Notice of Motion dated 28th February 2024 approached the court under a certificate of urgency seeking the following orders:-
a. Spent
b. Spent
c. There be a stay of execution of the judgment dated 13th October 2022 and Decree dated 19th May 2023 together with the Proclamation Notice dated 5th October 2023 and the Warrants of Attachment issued on 21st September 2023 pending interpartes hearing and determination of this application.
d. The court be pleased to review and set aside the judgment dated 13th October 2023.
e. The Decree dated 19th May 2023 , Proclamation Notice dated 5th October 2023 and the Warrants of Attachment issued on 21st September 2023 be set aside.
f. The decretal sum be set off against payments already made and the balance thereafter be settled by way of monthly installments of Kshs. 20,000/- per month until payment in full.
g. Costs.
2. The Court certified the application urgent and ordered for interpartes hearing for today.
3. When the parties appeared in court the Applicant informed the court that they had just been served with the replying affidavit dated 11th March 2024 and wished to file reply.
4. The applicant further sought for the court to issue the interim order to stay the execution pending the application determination.
5. The Counsel for the Respondent opposed the grant of the interim order on the basis that judgment was issued in 2022 and further a similar application was filed by the respondent and dismissed for want of prosecution.
6. The court-ordered stay of execution pending the hearing of the application interpartes by way of written submissions of which directions were given and further informed parties that reasons for the Order would follow.
7. The court hereby proceeds to issue a reasoned ruling for the grant of the interim stay of execution.
8. The court considered that triable issues were raised in the application. The court had certified the application as urgent. It is the opinion of the court that the application would be rendered nugatory if the interim stay of execution is not granted as the claimant had in place warrants of attachment. Lastly, the court holds that is in the interest of justice for the court to grant the interim order of stay of execution pending its decision on the application.
9. The Court then affirms the interim order granted to be:-
a. A temporary order of stay of execution is Hereby issued of the judgment dated 13th October 2022 and Decree dated 19th May 2023 together with the Proclamation Notice dated 5th October 2023 and the Warrants of Attachment issued on 21st September 2023 pending interpartes hearing and determination of this Application.
10. It is so Ordered.
Dated , signed and delivered this 13th day of March 2024 at Kakamega