Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in judgment· [2017] KEELC 2823 (KLR)

Florence Nafula Wafula v Evans Chetambe Wafula & another [2017] KEELC 2823 (KLR)

High Court of Kenya
23 May 2017
286 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~1 min to read original · ~4 min brief

The bottom line

#

The High Court in Bungoma refused to reverse an ex-parte judgment or stop execution because the defendants had been served and their property had already been attached.

What this practically means

#

Executive summary

#
The applicant moved the court by a Notice of Motion dated 15th December seeking a stay of execution of the decree, all consequential orders, and the setting aside, review or unconditional discharge of the exparte judgment made on 12th November 2015. The application was grounded on the assertion that the case was heard in the defendants' absence, that no hearing notice was served on them, and that the auctioneer did not serve a proclamation notice before attaching the defendants' animals. The respondent opposed the application, contending that the defendants were served with a hearing notice on 6/7/2015 and chose not to attend court, that an affidavit of service was on the court file, and that the applicant's affidavit was full of falsehoods since he had been served with the pleadings and had filed a defence. The respondent further argued that execution had already taken place, leaving nothing to stay. The court agreed, holding that service was proved by the affidavit of service on file and that the applicant's own grounds admitted execution had taken place; a court cannot stay what has already occurred. The Notice of Motion was dismissed with costs. Judgment was read in open court at Bungoma on 23rd May 2017, the parties being absent but served.

Key legal issues

#
01

Whether the exparte judgment should be set aside for want of service

Holding

The application failed because the record showed the applicant was served with the hearing notice and chose not to attend court.

Reasoning

The respondent produced an affidavit of service on the court file showing service of a hearing notice on 6/7/2015. The applicant had also been served with the pleadings and filed a defence, undermining his claim of non-service. On that evidence the court found the grounds asserting non-service to be unmerited.

p. 2
02

Whether stay of execution could issue after execution had taken place

Holding

No; the court cannot stay what has already taken place.

Reasoning

The applicant's own grounds admitted that execution had taken place, including proclamation and attachment of the defendants' animals by the auctioneer. Since the execution was complete, the relief of stay was spent and the court declined to grant it.

p. 2

Legal principles established

#
  • A court cannot stay execution that has already been carried out; the remedy of stay is unavailable post-execution.

Court orders

#
  1. 1.The Notice of Motion dated 15th December is dismissed with costs
Jurisdiction invoked
Not stated in the judgment

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Florence Nafula Wafula v Evans Chetambe Wafula & another [2017] KEELC 2823 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2823/eng@2017-05-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.