[2018] KEHC 6217 (KLR)
The court found that the Memorandum of Appeal raises serious issues regarding the attribution of vicarious liability to a financier of a motor vehicle based solely on the log book. If the lower court proceedings were to continue and be determined before the appeal is heard, the appellant could suffer prejudice and...
Source-derived case information.
- Citation
- [2018] KEHC 6217 (KLR)
- Parties
- Appellant: Co-operative Bank of Kenya Limited; Defendant: Thomas Ngui; Defendant: Asher Akal Onyango
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 334 of 2017
- Procedural Posture
- Civil Appeal / Interlocutory Application for Stay of Proceedings Pending Appeal
- Outcome
- application for stay of proceedings allowed
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Proceedings, Vicarious Liability, Motor Vehicle Accidents
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Co-operative Bank of Kenya Limited
Appellant
Thomas Ngui
Defendant
Asher Akal Onyango
Defendant
Procedural Posture
Civil Appeal / Interlocutory Application for Stay of Proceedings Pending Appeal
Legal Issues
- 1 Whether vicarious liability can be attributed to a financier of a motor vehicle solely because the log book bears the financier's name.
- 2 Whether the appellant is entitled to a stay of proceedings in the lower court pending determination of the appeal.
Ratio Decidendi
The court found that the Memorandum of Appeal raises serious issues regarding the attribution of vicarious liability to a financier of a motor vehicle based solely on the log book. If the lower court proceedings were to continue and be determined before the appeal is heard, the appellant could suffer prejudice and substantial loss should the appeal succeed. Therefore, to preserve the subject matter and ensure the appeal is not rendered nugatory, a stay of proceedings in the lower court is justified until the appeal is heard and determined.
Court Disposition
application for stay of proceedings allowed
Orders
- Lower court proceedings are stayed until the appeal is heard and determined.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 334 OF 2017
CO-OPERATIE BANK OF KENYA LIMITED.............APPELLANT
VERSUS
THOMAS NGUI........................................................1ST DEFENANT
ASHER AKAL ONYANGO...................................2ND DEFENDANT
RULING
This is an application lodged by the appellant herein who is the 2nd defendant in the lower court where proceedings are ongoing. The appellant had filed an application in the lower court objecting to its joinder in the said proceedings, after which a ruling was delivered on 9th June, 2017 dismissing the application.
The appellant then filed a Memorandum of Appeal followed by the present application. The proceedings in the lower court relate to a road traffic accident involving two motor vehicles one of which was owned by the 1st defendant. The appellant herein financed the acquisition of that motor vehicle. In the application before me the appellant refers to its Memorandum of Appeal, which raises the question whether or not vicarious liability may be attributed to a financier of a motor vehicle for alleged acts of the person driving the said motor vehicle, merely because the log book bears the said financier’s name. It is the fear of the appellant that, unless proceedings in the subordinate court are stayed then the appeal will be rendered nugatory.
There is a supporting affidavit sworn by the Relationship Manager of the appellant in support of the application. The application is opposed and there are two affidavits filed by the respondent in opposing the application. Counsel agreed that the application be determined on the contents of the affidavits filed by the parties.
Some of the issues raised in the affidavits relate to the pleadings filled by the parties and delve into matters of evidence and liability.
I believe it is clear from the facts as demonstrated by the parties that there are very serious issues raised in the Memorandum of Appeal to justify the order sought by the appellant.
In the event the lower court proceedings are determined before this issue is resolved, prejudice and substantial loss may be visited upon the appellant in if the appeal succeeds.
Accordingly, the lower court proceedings are hereby stayed until this appeal is heard and determined. As this order relates to proceedings that are ongoing in the lower court, parties should endeavour to have the appeal heard and determined expeditiously. Costs shall be in the cause.
Dated, signed and delivered at Nairobi this 29th day of May, 2018.
A. MBOGHOLI MSAGHA
JUDGE