Case ID:182066
Parties: None
Date Delivered: None
Case Type: None
Court: None
Judges: None
Citation: None
Isaac Gichunge Leakey v Njogu Titus Gichuru
[2021] eKLR
Case Metadata
Case Number:
Civil Appeal 14 of 2020
Parties:
Isaac Gichunge Leakey v Njogu Titus Gichuru
Date Delivered:
30 Sep 2021
Case Class:
Civil
Court:
High Court at Meru
Case Action:
Ruling
Judge(s):
Thripsisa Wanjiku Cherere
Citation:
Isaac Gichunge Leakey v Njogu Titus Gichuru
[2021] eKLR
Advocates:
For Appellant - Ms. Otieno for M/s Maitai
Rimita & Co. Advocates
For Respondent - Mr. Mwirigi for M/s Mwirigi
Kaburu & Co. Advocates
Court Division:
Civil
County:
Meru
Advocates:
For Appellant - Ms. Otieno for M/s Maitai
Rimita & Co. Advocates
For Respondent - Mr. Mwirigi for M/s Mwirigi
Kaburu & Co. Advocates
History Advocates:
Both Parties Represented
Case Outcome:
Application dismissed with costs to the Respondent
Disclaimer:
The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
(CORAM: CHERERE-J)
CIVIL APPEAL NO. 14 OF 2020
BETWEEN
ISAAC GICHUNGE LEAKEY .............................APPELLANT
AND
NJOGU TITUS GICHURU....................................RESPONDENT
RULING
1. By a judgment dated 06
th
May, 2021, this court dismissed Appellant’s appeal with costs to the Respondent/Applicant.
2. Subsequently on 24
th
May, 2021, this court ordered that Kshs. 700,000/- deposited by the Appellant with Kenya Commercial Bank, Meru Branch be released to Applicant’s advocate Ms. Mwirigi Kaburu Advocates.
3. Afterwards and more particularly on 31
st
May, 2021, Appellant filed a notice of motion for stay of execution of attachment of warrants in
MERU CMCC NO. 40 OF 2019
seeking to avoid payment of auctioneer charges and also to pay costs in the lower court and in the appeal in instalments. A temporary stay order was granted on 03
rd
June, 2021.
4. The application is based on grounds among others that the Respondent has obtained warrants of attachment for Kshs. 943,319/- which includes Kshs. 700,000/- deposited in the joint names of both advocates and further on the ground that Applicant has not refused to pay costs.
5. The application is also supported by an affidavit sworn by the Appellant on 02
nd
June, 2021in which he reiterates the grounds on the face of the application.
6. The application is opposed on the basis of grounds of opposition dated 19
th
July, 2021. Respondent contends that having dismissed the Appellant’s appeal, the court was
functus officio
, it has no jurisdiction to stay execution of warrants validly issued by the trial court and further that costs which the Appellant seeks to pay in instalments have not been taxed.
7. I have considered the application in the light of the supporting affidavit, the grounds of opposition and submission on behalf of both parties.
8. As I have stated above, this court has already rendered its decision in this matter and dismissed the appeal. This application raises new issues that Appellant did not raise in the appeal and this court having heard and determined the appeal is not seized of jurisdiction to determine those issues. Further the dismissal of the appeal resulted in this court confirming the orders of the trial court. I am in agreement with the Respondent’s submission that this court is
functus officio
and any dispute concerning the warrants of attachment ought to be tried by the trial court.
9. In the end, it is hereby ordered:
1. The order of stay of execution of warrants dated
03
rd
June, 2021 and issued on 04
th
June, 2021 is set aside
2. The
application dated 31
st
May 2021 is dismissed with
costs to the Respondent
DATED AT MERU THIS 30
TH
DAY OF SEPTEMBER,2021
T. W. CHERERE
JUDGE
Court Assistant -
Morris Kinoti
For Appellant - Ms. Otieno for M/s Maitai Rimita & Co. Advocates
For Respondent - Mr. Mwirigi for M/s Mwirigi Kaburu & Co. Advocates