Repubic of Kenya v Kilifi Air Charters Limited & 3 others

REPUBIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI COMMERCIAL & TAX DIVISION CIVIL SUIT NO.1198 OF 1999 MIDDLE EAST BANK KENYA LIMITED.....................PLAINTIFF VERSUS KILIFI AIR CHARTERS LIMITED......................1ST DEFENDANT DAVID HARRIS.......................................................2 ND DEFENDANT EDGAR IVAN MANASSEH...................................3RD DEFENDANT TIMOTHY MTANA LEWA...................................4TH DEFENDANT RULING 1. On the 29th October 2010 judgment was entered for the plaintiff, Middle East Bank Kenya Limited, against all the defendants. 2. The 2nd defendant David Harris has filed a Notice of Motion dated 30th May 2018. He seeks a prayer for injunction against the judgment of this Court, pending the hearing and determination of the 2 nd defendant’s appeal, at the Court of Appeal, being Civil Appeal No. 34 of 2011. 3. The plaintiff and the 2 nd defendant filed their affidavits and submissions in respect to the Notice of Motion. I have considered those affidavits and submissions. 4. The salient issue raised by the applicant 2 nd defendant is that he filed an appeal to the Court of appeal. That appeal was fixed for hearing on 22nd May 2018 and 23rd July 2018 but the same could not proceed for hearing. No fault can be attributed to the 2 nd defendant for failure of hearing of the appeal. The 2nd defendant denies delay in seeking an injunction. That the plaintiff, decree holder, did not seek to execute the judgment passed on 29th October 2010 until May 2018 when a Notice to show cause was obtained against the 2 nd defendant. 2nd defendant deponed that the plaintiff does not seek to execute judgment against the other defendants which the 2 nd defendant views as personal vendetta. That the plaintiff has a legal charge over the 1 st defendant’s property being L.R. No. 1705/44 Kilifi. 5. The plaintiff does oppose the application. In opposing the plaintiff stated that the 2 nd defendant in an attempt to delay execution of the decree herein has transferred his property valued at Kshs.100 million to his son. The plaintiff termed the 2 nd defendant’s application as incompetent because the Rule do not give this Court jurisdiction to issue injunction after judgment. That the applicant has also failed to meet the conditions of stay pending appeal set out in the Rules. That he failed to satisfy the Court that he will suffer substantial loss if the order sought is not granted; had not provided security; and had made the application after unreasonable delay. That the land upon which the plaintiff holds a legal charge was invaded by squatters and accordingly no buyer has been willing to take the risk of purchasing the land. 6. I have considered the parties evidence submissions and authorities. 7. It is clear that although judgment was entered against all the defendants in the year 2010 the plaintiff failed to execute that judgment, against the 2nd defendant, until May 2018. The plaintiff is also secured by the legal charge over the Kilifi property. I do take note that the said land has been invaded by squatters thereby frustrating the plaintiffs attempt to realize its security. 8. Having considered the parties affidavits and submissions, I find that the interest of justice demand, since the decree has remained unexecuted for more than 8 years that stay of execution be granted. I am aware that what the 2 nd defendant prayed for is an injunction but in

page 1 of 2