[2012] KEHC 5182 (KLR)
The court found that the appellant had a right to be heard on whether the trial magistrate was correct in rejecting the inclusion of their counter-claim as time-barred. To ensure that the appeal was not rendered nugatory and to avoid prejudice to the appellant, a stay of proceedings in the subordinate court was...
Source-derived case information.
- Citation
- [2012] KEHC 5182 (KLR)
- Parties
- Appellant: Concord Insurance Co. Ltd; Respondent: Moses Gakunga Kiruku
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 273 of 2011
- Procedural Posture
- Civil Appeal / Application for Stay of Proceedings Pending Appeal
- Outcome
- Application for stay of proceedings granted.
- Legal Topics
- Stay of Proceedings, Counter Claims, Declaratory Suits, Limitation Periods
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Concord Insurance Co. Ltd
Appellant
Moses Gakunga Kiruku
Respondent
Procedural Posture
Civil Appeal / Application for Stay of Proceedings Pending Appeal
Legal Issues
- 1 Whether the trial magistrate erred in rejecting the appellant's counter-claim as time-barred.
- 2 Whether a stay of proceedings should be granted pending the determination of the appeal.
Ratio Decidendi
The court found that the appellant had a right to be heard on whether the trial magistrate was correct in rejecting the inclusion of their counter-claim as time-barred. To ensure that the appeal was not rendered nugatory and to avoid prejudice to the appellant, a stay of proceedings in the subordinate court was warranted until the appeal was determined. The court also ordered the appellant to provide security for costs as a condition for the stay.
Court Disposition
Application for stay of proceedings granted.
Orders
- Stay of proceedings in CMCC 13580/06 granted until determination of the appeal.
- Appellant to deposit security for costs of Ksh. 279,000 in court within 14 days.
Full Case Text
Judgment text and source record
59 paragraphs
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Editorial Summary
1. Civil Appeal
2. Civil Practice and Procedure
3. Subject of Subordinate Court Case
DECLARATORY SUIT
3. 1 Motor vehicle accident.
3. 2 Multiplicity of suits accidents.
The appellant original defendants insured
3. 3 Insurance company appellant – declaratory suit to pay decretal sum awarded in damages for injuries sustained.
3. 4 Application to trial court to file acounter claim.
3. 5 Application dismissed
3. 6 Appeal to High Court.
3. 7 Application for stay of proceedings ofsubordinate court case.
4. Application 9th December 2011
4. 1 To grant a stay of proceedings tofinalization of appeal.
5. In reply:
5. 1 The appellants have already settled oneout of two cases.
5. 2 Application opposed
6. Held:
Stay of proceedings granted.
7. Case Law:
8. Advocates:
i)C.A. Nyaitho instructed by M/s Archer & Wilcox & Co Advocates for appellant/original defendant
ii) E Nganga instructed by M/s E. Nganga & Co Advocates for respondent/ original plaintiff
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYAAT NAIROBI
MILIMANI LAW COURTS
CIVIL APPEAL NO. 273 OF 2011
CONCORD INSURANCE CO. LTD.....................................APPELLANT/ORIGINAL DEFENDANT
VERSUS
MOSES GAKUNGA KIRUKU.............................................RESPONDENT/ORIGINAL PLAINTIFF
(Being an appeal from the Ruling of Hon. A.K. Ndungu Esq, Senior Principal Magistrate of 2nd day of June 2011
in CMCC No. 13580 of 2006 at Milimani Commercial Courts at Nairobi)
R U L I N G
I.BACKGROUND
1. The appellant/applicant M/s Concord Insurance Company Ltd were sued in a declaratory suit by the respondent, their insured in which the respondent sought orders of the court, that the insurance company be compelled to pay the decretal sum awarded in damages, due to an accident that occurred on 13th May 2004.
2. There were multiplicity of suits filed and award given. The insurance company applied to the court in question to have a “counter-claim” to be included in the pleadings. The trial magistrate declined on grounds that the said “counter-claim” was time barred.
3. Being aggrieved, the applicant filed an appeal against the ruling delivered on 2nd June 2011. The appeal dated 17th June 2011 was filed on 20th June 2011.
4. An application dated the 9th December 2011 was thereafter filed seeking orders for a stay of proceedings till the finalization of the appeal.
IIAPPLICATION FOR STAY OF PROCEEDINGS
9TH DECEMBER 2011
5. This application was heard interparties. The appellant claimed they would be prejudiced if the proceedings continue.
6. In reply, the respondent alleges that there has been settlement of other cases in connection with the same accident and did not therefore see why there be stay of proceedings in the matter. The respondent asked the application be dismissed.
IIIFINDINGS
7. The applicant wants to be heard on the point as to whether or not the trial magistrate was correct to reject the inclusion of their
“counter-claim” in their pleadings. In order for this to occur, stay of proceedings would be in order.
8. I would accordingly allow this application for stay of proceedings in CMCC 13580/06 until the determination of the appeal.
9. I order that security of costs of Ksh. 279,000/= be provided by the appellant to be deposited to court pending the finalization of the appeal. That this deposit be done within 14 days.
DATED THIS 19TH DAY OF JANUARY 2012 AT NAIROBI
M.A. ANG’AWA
JUDGE
Advocates:
i)C.A. Nyaitho instructed by M/s Archer & Wilcox & Co Advocates for appellant/original defendant
ii) E Nganga instructed by M/s E. Nganga & Co Advocates for respondent/ original plaintiff