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ELCOtherKitale High Court (miscellaneous application arising from Kitale CMCC No. 463 of 2016; related to Kitale High Court Civil Appeal No. 34 of 2017)· [2020] KEELC 3924 (KLR)

Kapsoen Estates Ltd & another v David Kurgat [2020] KEELC 3924 (KLR)

High Court of Kenya
21 January 2020
1,347 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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The Kitale High Court struck out a preliminary objection and confirmed it could grant interim stay of execution over a case transferred to it.

What this practically means

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Executive summary

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This ruling of the High Court at Kitale (Mwangi Njoroge, J) determined a preliminary objection dated 29/7/2019 raised by the plaintiffs/applicants against a notice of motion dated 22/6/2019 in which the applicants sought interim and substantive stay of execution of a judgment dated 18/10/2017 in Kitale CMCC No. 463 of 2016, a money decree for a refund of a purchase price of Kshs.10,000,000/=. The applicants had earlier filed a notice of motion dated 26/11/2018 in the High Court seeking stay and other reliefs pending their appeal (Kitale High Court Civil Appeal No. 34 of 2017); by a ruling dated 3/4/2019 Hon. Justice Chemitei declined to determine that application on the merits, holding that it was the subordinate court seized of jurisdiction, and transferred it to this court without extending the interim orders. Faced with an auctioneer's proclamation notice dated 19/6/2019, the applicants filed the instant application for interim stay. The respondent objected on four grounds: lack of jurisdiction, abuse of process, failure to deposit any of the decretal sum, and that the transfer order did not justify a fresh miscellaneous application. The court rejected all four limbs, holding that the transferred application fell to be heard and determined by this court, that it would be rendered nugatory without stay since the High Court had not extended interim orders, and that filing the instant application was the only available means for the applicants to secure their position. The preliminary objection was struck out with costs to the applicants.

Key legal issues

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01

Whether the court had jurisdiction to entertain the application for interim stay of execution

Holding

The preliminary objection on jurisdiction failed because the instant application merely sought stay pending hearing of an earlier application transferred to this court by the High Court, which this court is seized of.

Reasoning

The court held that the application dated 26/11/2018 having been transferred to it by the High Court in a ruling dated 3/4/2019, it fell to this court to hear and determine that application on the merits. The preliminary objection on jurisdiction did not target the earlier transferred application but only the instant one. Since the High Court had not extended the interim orders, the transferred application would be rendered nugatory without stay, so the court could entertain the instant application.

p. 2
02

Whether the filing of the separate miscellaneous application was an abuse of process

Holding

The objection that the transfer order was 'not an excuse for another separate miscellaneous application' was misguided; filing the instant application was the only available means for the applicants to secure their position pending hearing of the transferred application.

Reasoning

The court reasoned that since the High Court never extended the interim orders when transferring the application dated 26/11/2018, the applicants faced apprehended execution before that application could be heard, as evidenced by the auctioneer's proclamation notice and invoice of 19/6/2019. Lodging the instant application for interim stay was the only available means to secure their position, so it was not an abuse of process.

p. 2

Legal principles established

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  • Where an application has been transferred to a court by the High Court, that court has jurisdiction to hear and determine the application and may grant interim stay to prevent the application being rendered nugatory
  • A party whose application has been transferred may properly file a separate application to secure its position pending hearing of the transferred application

Court orders

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  1. 1.The preliminary objection dated 29/7/2019 is struck out
  2. 2.Costs of the preliminary objection awarded to the applicants

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)
  • Civil Procedure ActSections 1A, 1B, 3 and 3A
  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 51 Rule 1
Jurisdiction invoked
Article 159(2) of the Constitution of Kenya; Sections 1A, 1B, 3 and 3A of the Civil Procedure Act; Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kapsoen Estates Ltd & another v David Kurgat [2020] KEELC 3924 (KLR)", Case Analysis (2020). Kitale High Court (miscellaneous application arising from Kitale CMCC No. 463 of 2016; related to Kitale High Court Civil Appeal No. 34 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3924/eng@2020-01-21

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