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|Case Number:||Civil Case 930 of 1985|
|Parties:||BONIFACE K KAMAU v JUSTUS MATHENGE NDUHIU|
|Date Delivered:||25 Nov 2009|
|Court:||High Court at Nairobi (Milimani Law Courts)|
|Judge(s):||David Anasi Onyancha|
|Citation:||BONIFACE K KAMAU v JUSTUS MATHENGE NDUHIU  eKLR|
[RULING] – Civil Procedure - Stay – stay of execution – application for stay of execution of judgment and all consequential orders pending the hearing and determination of prayer for a lawful agreement between the parties – where there was a previous order of stay with no record of its discharge – whether in the circumstances the application was res judicata.
Judgment – Cause of action – where applicant sought to introduce new cause of action - evidence not introduced during the hearing of the present suit – where the matter had been fully determined - whether new evidence can be introduced in an already determined suit.
|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 NAIROBI (NAIROBI LAW COURTS)
Civil Case 930 of 1985
BONIFACE K KAMAU .............................................. PLAINTIFF
JUSTUS MATHENGE NDUHIU. .............................. DEFENDANT
R U L I N G
The application before the court is the Chamber Summons dated 16th July, 2008. It seeks the relief: -
“That the Honourable court do grant a stay of execution of the judgment entered against the applicant/defendant and all consequential orders and/decree, pending the hearing and final determination of the prayer that the suit herein has been otherwise compromised by lawful agreement between the parties herein.”
I have carefully studied the supporting documents and the record of this file. As the applicant himself depones in his supporting affidavit sworn by him on 16TH July, 2008, this court by an order made by Osiemo, J on 15th June, 2006, stayed execution of his judgment and decree delivered on 24th October, 2005 until the hearing and final determination of an appeal filed by the applicant. Perusal of the record does not show that the said stay order has ever been discharged. That means that the stay is still in place.
In the above circumstances this application for a similar stay cannot be anything else but incompetent for being res judicata.
On the other hand, even were this application to be valid, the applicant/judgment debtor is trying to drag into the case a new cause of action. The judgment debtor is trying to argue that the decree in favour of the Decree holder/Respondent in this application, should be considered compromised. In my view that cannot be so. That is because the suit subject to the result of the purported appeal, is a finalized or fully determined suit which has nothing to do with new evidence of a purported agreement of sale of the suit property. Such new evidence was not introduced during the hearing of the present suit. It can only therefore be brought into play on a possible new suit which presently does not exist. In my view and finding, the applicant/judgment debtor is deliberately trying to confuse the legal situation by introducing new evidence into an already determined suit. He cannot be allowed to do so.
The court is from the record aware that the decree-holder has filed an application dated 25th February, 2008 to set aside or discharge Osiemo, J’s stay orders. In my view, the application should be heard on merit on the date to be fixed by the parties or the court.
In the meantime, the Applicant/Judgment debtor’s application for stay, is hereby struck out and dismissed with costs to the decree holder. Orders accordingly.
Dated and delivered at Nairobi this 25th day of November, 2009.
D A ONYANCHA