Case ID:182066

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