Kashingiri (Suing as the legal Representative of the Estate of Paul Wanyiri Kaiba) v Mukanda (Civil Appeal 46 of 2021) [2022] KEHC 13686 (KLR) (13 October 2022) (Judgment)

Facts

The appellant, Kashingiri, sought a stay of execution of a notice to show cause and a stay of execution of a decree, pending the filing, prosecution, and final determination of her declaratory suit against an insurer, as per a consent dated October 22, 2020. The respondent, Mukanda, opposed the application, alleging that the appellant had breached the consent by taking out a notice to show cause.

Issues

1. Whether the appellant was entitled to take out execution by way of a notice to show cause as it did

Reasoning

The court determined that the appellant breached the terms of the consent by taking out a notice to show cause, which amounts to commencement of execution proceedings. The court found that the consent order is binding on the parties and the appellant's act of commencing execution proceedings was in blatant violation of the said consent order.

Outcome

Appeal dismissed with costs

Authorities cited