[2021] KEHC 8618 (KLR)
The court found that the applicant had demonstrated a willingness to settle the matter and that the failure to file a defence was due to ongoing settlement negotiations. The court held that the applicant should be allowed to appeal and that no prejudice would be occasioned to the respondent if a conditional stay was...
Source-derived case information.
- Citation
- [2021] KEHC 8618 (KLR)
- Parties
- Applicant: CIC General Insurance Limited; Respondent: Paul Maisyo Musyoka
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- ? E373 of 2020
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
- Outcome
- application allowed with conditions
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Execution, Leave to Appeal Out of Time, Declaratory Judgment, Interlocutory Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
CIC General Insurance Limited
Applicant
Paul Maisyo Musyoka
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant should be granted a stay of execution of the lower court judgment pending appeal.
- 2 Whether the applicant should be granted leave to file an appeal out of time.
Ratio Decidendi
The court found that the applicant had demonstrated a willingness to settle the matter and that the failure to file a defence was due to ongoing settlement negotiations. The court held that the applicant should be allowed to appeal and that no prejudice would be occasioned to the respondent if a conditional stay was granted. Accordingly, the court allowed the application for stay of execution on condition that the applicant deposits Kshs. 200,000 in a joint interest-earning account within 30 days. Leave to file the memorandum of appeal out of time was also granted, with further directions on the filing of the record of appeal. The costs were ordered to abide by the outcome of the appeal.
Court Disposition
application allowed with conditions
Orders
- Stay of execution granted on condition that the applicant deposits Kshs. 200,000 in an interest earning account in the joint names of the advocates within 30 days.
- Leave granted to the applicant to file the memorandum of appeal within 14 days from the date of the ruling.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
HCC MISC.E373 OF 2020
CIC GENERAL INSURANCE LIMITED.............................APPLICANT
VERSUS
PAUL MAISYO MUSYOKA.............................................RESPONDENT
RULING
By an application dated 10th September, 2020 the applicant seeks an order of stay of execution of the lower court Judgment, and also leave to file an appeal out of time. The judgment in the lower court arose from declaratory suit, after which a sum of Kshs. 406,244. 58 was awarded to the respondent. That award aggrieved the applicant considering that the matter was decided before a defence was filed, and after an interlocutory judgment was entered in favour of the respondent.
The application is opposed and there are grounds of opposition filed on behalf of the respondent. Both parties filed submissions which I have noted.
There is evidence that the applicant instructed counsel to file a defence which was not done for reasons that a settlement was in the offing. Correspondence annexed to the affidavit in support of the application shows that the applicant was always ready to settle this matter. The applicant through counsel, repeatedly communicated the willingness to settle this matter, notwithstanding the intended appeal against the decretal sum.
The quest to appeal, at least from the record, is informed by the medical reports upon which the original award was made. Any party before the court should be given the opportunity to exhaust all the avenues available provided no prejudice shall be occasioned to the other party.
While leaving the option to settle the matter in view of the history towards that direction, I am inclined to allow the application for stay of execution on condition that, the appellant shall deposit a sum of Kshs. 200,000/= in an interest earning account in the joint names of the advocates appearing for the parties within 30 days from the date of this ruling. I also grant leave for the applicant to file the memorandum of appeal within 14 days from the date of this ruling.
Thereafter ,the applicant shall ensure the record of appeal is filed within 30 days from the date of filing the Memorandum of Appeal, subject to the availability of the lower court record. The costs shall abide by the decision of the appeal.
Dated, signed and delivered at Nairobi this 11th day of March, 2021.
A. MBOGHOLI MSAGHA
JUDGE