CONTINENTAL DEVELOPERS LTD v SAUTI HOUSING CO-OPERATIVE SOCIETY [1999] KEHC 68 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)

Civil Case 933 of 1996

CONTINENTAL DEVELOPERS LTD............................................................. PLAINTIFF

VERSUS

SAUTI HOUSING CO-OPERATIVE SOCIETY LTD................................ DEFENDANT

RULING

This is an application by Co-Operative Bank for leave to appealagainst orders granted on 1. 10. 98.  The bank was not a party to the suit.The court however decided to give the Bank opportunity to be heard inrespect of the Decree Holder's application dated 3/9/97 seeking leave tosell some property which happened to be charged to the bank. The bankwas made a party to execution proceedings.

It is true that Mr. Gatonye orally applied for leave to appeal on1/10/98 after the Ruling was read.  It is also true that Mr. Gatonye alsoorally applied for stay of execution.But the record shows that, after the application,  Mr. Rachi appliedfor adjournment as it was 4. 20 p.m as he was going to take long to reply toMr. Gatonyes oral application.  The application was stood over to the 6. 10. 98 but on that day.Mr. Gatonye applied  for adjourment  to get  full 6. 10. 98  but on that day. Mr Gatonye applied for  journment to get full instructions regarding the intended appeal.

The application for adjournment was granted and so Mr. Rachi did not reply to Mr. Gatonye's oral application.

Eventually Mr. Gatonye filed a formal application for stay of execution pending appeal and a temporary stay of execution pending appeal was granted pending the hearing of the application. The application has never been heard because over the time parties has sought time to find a buyer of the property.  It would appear that the Judgement Debtor has been unsuccessful to get a buyer.

From the record it is not correct for Mr. Gatonye to say that the oralapplication for leave to appeal was not opposed.  It was adjourned forsubmissions by Mr. Rachi but it appears that counsels got pre-occupied with attempts to get a buyer of the property,  Mr. Rachi has now replied tothe formal application for leave to appeal and has opposed it.

I have considered all the circumstances of this case.  1 have takeninto account that in the Ruling dated 1. 10. 98 all the rights of the bank asthe chargee and under the charge were fully protected and were notinterfered with. The bank is only dissatisfied with the order regarding themanner of computation of the money recoverable.  But court has givenparties liberty to apply in case of disagreement.

The matter has been delayed for about one year since the date of theRuling.  Interest has been accumulating over the debt owed by  J.D both tothe bank and to the Decree Holder.

Even at present and considering the depressed market of the real property,it is unlikely that the property will fetch sufficient funds to pay plaintifffully after paying the bank.  An appeal will cause further delay.  All thiswill be detrimental to the Judgment Debtor and to the plaintiff.

In the circumstances of the dispute, it is my view that there are novalid grounds for Appeal and any further delay will cause great loss toDecree Holder and Judgment Debtor.

Consequently; I decline to grant leave to the bank to appeal dismisses the application with costs.

G M. GITHINJI

JUDGE

19. 8.99