[2019] KEHC 8601 (KLR)
The court found that the respondent and the minors he represented in the present appeal were not parties to Civil Appeal No. 92 of 2011. Therefore, any claim for refund or offset of excess payment made in Civil Appeal No. 92 of 2011 could only be pursued against the respondent in that specific appeal, namely...
Source-derived case information.
- Citation
- [2019] KEHC 8601 (KLR)
- Parties
- Appellant: Benard Olweny Agutu; Respondent: Shem Oduor Adiedo
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 88 of 2011
- Procedural Posture
- Civil Appeal / Ruling on Notice of Motion for Refund/offset of Excess Payment
- Outcome
- Application dismissed with costs to the respondent.
- Judges
- TW Cherere
- Legal Topics
- Stay of Execution, Decretal Sum, Refund of Excess Payment, Joint Account, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benard Olweny Agutu
Appellant
Shem Oduor Adiedo
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice of Motion for Refund/offset of Excess Payment
Legal Issues
- 1 Whether the applicant is entitled to an order for offset or refund of the amount paid in excess in Civil Appeal No. 92 of 2011 from the joint account held in the present appeal.
- 2 Whether the respondent in this appeal is the proper party against whom a claim for refund of excess payment in Civil Appeal No. 92 of 2011 can be made.
Ratio Decidendi
The court found that the respondent and the minors he represented in the present appeal were not parties to Civil Appeal No. 92 of 2011. Therefore, any claim for refund or offset of excess payment made in Civil Appeal No. 92 of 2011 could only be pursued against the respondent in that specific appeal, namely Benedict Otieno, and not against the respondent in the current matter. The application for offset or refund from the joint account in this appeal was therefore misconceived and without merit.
Court Disposition
Application dismissed with costs to the respondent.
Orders
- The notice of motion dated 3rd October, 2018 is disallowed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
(CORAM: CHERERE-J)
CIVIL APPEAL NO. 88 OF 2011
BETWEEN
BENARD OLWENY AGUTU……………………………………….APPELLANT
AND
SHEM ODUOR ADIEDO…………………………………...……RESPONDENT
RULING
Background
1. This appeal arises from MASENO SPMCC 33 of 2010 where the appellant who was the defendant was ordered to pay the plaintiff (respondent in this case) and 4 others damages arising out of injuries they suffered in a road accident.
2. Applications dated 20th February, 2012 for stay of execution pending appeal in the 5 cases were allowed by consent on condition that the Appellant pays half of the decretal sum to the plaintiffs/respondents and the balance thereof be deposited in an interest earning account in the names of advocates for both parties. The consent order was complied with.
3. The appeals were subsequently heard and CIVIL APPEAL NOs. 88; 89 and 90 OF 2011were dismissed whereas the sums of Kshs. 200,000/- and Kshs. 250,000/- which were the subject of CIVILAPPEAL NOs. 91 and 92 OF 2011 were reduced to Kshs. 100,000/- in each.
3. By an application dated 3rd October, 2018, the Applicant seeks orders that that the amount paid in excess in CIVIL APPEAL NO. 92 OF 2011 be offset from the amount held in the joint account which the respondent opposes.
4. I have considered the notice of motion in the light of the supporting affidavit, annexures thereto and the replying affidavit.
5. It is not disputed that the respondent and the minors for whom he sued in CIVIL APPEAL NOs. 88, 89, 90 and 91 OF 2011 are not parties to CIVIL APPEAL NO. 92 OF 2011.
6. Consequently, I find that the applicant’s claim for refund of amount paid in excess inCIVIL APPEAL NO. 92 OF 2011 lies against BENEDICT OTIENO, the respondent in that case and not against the respondent herein.
7. In the result, the notice of motion dated 3rd October, 2018 has no merit and it is disallowed with costs to the respondent.
DATED AND SIGNED IN KISUMU THIS 28TH DAY OF MARCH2019
T. W. CHERERE
JUDGE
Read in open court in the presence of-
Court Assistant - Felix
For the Applicant -N/A
For the Respondent -N/A