Cooperative Bank Of Kenya Limited v Josephat Kirigia Aburi [2019] KEELC 3455 (KLR)
The bottom line
#A Kenyan court refused the bank's request for extra time because it sat on the 14 days it had already been given — use your window or lose it.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to grant stay despite functus officio objection
The court retains jurisdiction under Order 42 of the Civil Procedure Rules to hear and determine an application for stay, including one made orally
The respondent argued that the court, having delivered its ruling on 27.3.2019 and granted a 14-day stay, was functus officio and that any further stay application lay in the Court of Appeal. The court rejected this, holding that Order 42 confers mandate on it to hear and determine stay applications, which may also be made orally, and that it has discretion to grant orders that are fair and just. However, the discretion was exercised against the appellant for its inaction.
Whether a further stay of 7 days ought to be granted
Stay was refused because the appellant failed to act during the earlier 14-day stay granted on 27.3.2019
The court noted that on 27.3.2019 it granted a stay of 14 days on being requested. The appellant had a window of opportunity to take the action it desired during that period but did nothing. In the exercise of discretion, granting a further stay to an indolent party would not be fair and just, so the request was declined and the matter marked as closed.
Legal principles established
#- Under Order 42 of the Civil Procedure Rules, the court that delivered the decision has mandate to hear and determine an application for stay, which may be made orally
- The court's discretion to grant stay must be exercised fairly and justly, and a party who fails to act within a period of stay already granted cannot expect a further stay
Court orders
#- 1.Declined to grant any orders of stay
- 2.The matter is marked as closed
- Jurisdiction invoked
- Order 42 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cooperative Bank Of Kenya Limited v Josephat Kirigia Aburi [2019] KEELC 3455 (KLR)", Case Analysis (2019). ELCA Case No. 25 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3455/eng@2019-04-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.