[2022] KEHC 13404 (KLR)
The court found that the applicant already had judgment and an order of mandamus in their favour, and none of the orders had been stayed or set aside, so the applicant was still at liberty to execute. The appeal did not delay or deny the applicant the fruits of judgment. The court held that summary dismissal of the...
Source-derived case information.
- Citation
- [2022] KEHC 13404 (KLR)
- Parties
- Appellant: County Government of Meru; Respondent: DKK (Suing as next friend to HM (minor))
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E171 of 2022
- Procedural Posture
- Civil Appeal / Ruling on Notice of Motion to Strike Out Appeal and for Security for Costs
- Outcome
- Application dismissed; costs to abide the outcome of the appeal.
- Judges
- TW Cherere
- Legal Topics
- Summary Dismissal, Security for Costs, Execution of Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
County Government of Meru
Appellant
DKK (Suing as next friend to HM (minor))
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice of Motion to Strike Out Appeal and for Security for Costs
Legal Issues
- 1 Whether the appeal should be summarily rejected and struck out.
- 2 Whether the appellant should be ordered to provide security for costs.
- 3 Whether the appeal delays or denies the respondent the fruits of judgment.
Ratio Decidendi
The court found that the applicant already had judgment and an order of mandamus in their favour, and none of the orders had been stayed or set aside, so the applicant was still at liberty to execute. The appeal did not delay or deny the applicant the fruits of judgment. The court held that summary dismissal of the appeal was not merited because the respondent had satisfactorily explained the delay in obtaining proceedings. There was no evidence that the respondent would be unable to pay costs if the appeal was unsuccessful, so an order for security for costs was also declined. The application was therefore disallowed, and costs were to abide the outcome of the appeal.
Court Disposition
Application dismissed; costs to abide the outcome of the appeal.
Orders
- The notice of motion dated April 12, 2022 is disallowed.
- Costs shall abide the outcome of the appeal.
Full Case Text
Judgment text and source record
25 paragraphs
County Government of Meru v DKK (Suing as next friend to HM (minor)) (Civil Appeal E171 of 2022) [2022] KEHC 13404 (KLR) (6 October 2022) (Ruling)
Neutral citation: [2022] KEHC 13404 (KLR)
Republic of Kenya
In the High Court at Meru
Civil Appeal E171 of 2022
TW Cherere, J
October 6, 2022
Between
County Government of Meru
Appellant
and
DKK
Respondent
Suing as next friend to HM (minor)
Ruling
1By a notice of motion dated April 12, 2022 filed on April 14, 2022, applicant seeks orders that1. That the honourable court be pleased to reject this appeal summarily and strike it out.2. That in the alternative, if the honourable court is minded for the due performance of the decree by depositing in respondent and advocates for the appellant the outstanding decretal sum of KES 6,186,630/= together with costs KES 398,160/- pursuant to the order of mandamus issued by this honourable court on November 15, 2021 compelling the appellant’s County Executive Committee Member and Chief Officer in charge of the Department of Finance, Economic Planning and ICT to settle the outstanding decretal amount awarded to the respondent in Maua Chief Magistrates’ Court Civil Case No 15B of 2013. 3.That the honourable court be pleased to order the appellant to give security for costs of the appeal to be further incurred by the respondent if the appeal is admitted for hearing.4. That the costs of this application be provided for.
2The application is based on grounds among others that:a)There is no sufficient ground for interfering with the decree issued in favour of applicantsb)There has been inordinate delay of about 3 years in filing the appealc)The appeal has been filed as an afterthought to delay and frustrate applicant from enjoying the fruits of his judgment
3The application is supported by an affidavit sworn on September 12, 2022 by Kiruai Mukono, advocate for the respondent. He avers that there was delay in getting the proceedings of the trial court and further urges that respondent be given a chance to ventilate his appeal.
Analysis and determination 4. I have considered the notice of motion dated April 12, 2022 in the light of affidavits on record and annexutres thereto.
5. It is not disputed that applicant has judgement in his favour issued in Maua CMCC 15B of 2013. Additionally, applicant has an order of mandamus dated December 1, 2021 issue in his favour directing the County Executive Committee Member and also the Chief Officer, Department of Finance, Economic Planning and ICT, the County Government of Meru and Department of Finance Economic Planning and ICT, the County Government of Meru to settle the decretal sum in Maua Chief Magistrates Court Civil Case No 15B of 2013.
6. The court record reveals that none of the orders issued in applicants favour have been stayed or set aside and applicant is therefore still at liberty to execute. It therefore follows that the appeal neither delays nor denies the applicant the fruits of his judgement.
7. Driving a party from the seat of justice without giving them a chance to ventilate their case is a draconian measure which should be exercised cautiously. Respondent has explained to the satisfaction of the court that there was delay in supplying it with the proceedings and judgment that is the subject of this appeal and an order for summary dismissal of the appeal is therefore unmerited.
8. There is no evidence that respondent would not be in a position to pay the costs of the appeal in the event that the appeal is unsuccessful and therefore an order for security of costs is declined.
9. In the end, the notice of motion April 12, 2022 filed on April 14, 2022 is disallowed. Costs shall abide the outcome of the appeal.
DELIVERED IN MERU THIS 06 TH DAY OF OCTOBER 2022WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistant - Mr. KinotiFor Applicant - N/A for C.K.Ungu & Associates AdvocatesFor Respondent - Mr. Muthomi Njeru for Kiautha Arithi & Co. Advocates