[2012] KEHC 4513 (KLR)
The court found that the applicant had judgment entered against him ex parte and that his application for review was refused. The applicant's defence was that he was not the owner of the vehicle involved in the accident, which, if established, could result in a successful appeal. The court determined that there was...
Source-derived case information.
- Citation
- [2012] KEHC 4513 (KLR)
- Parties
- Appellant: James Ngugi Mwangi; Respondent: Peter Ngochi Ndwiga
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 118 of 2012
- Procedural Posture
- Civil Appeal / Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution granted.
- Legal Topics
- Motor Vehicle Accident, Running Down Cases, Stay of Execution, Exparte Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Ngugi Mwangi
Appellant
Peter Ngochi Ndwiga
Respondent
Procedural Posture
Civil Appeal / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution pending appeal.
- 2 Whether the applicant was the owner of the vehicle involved in the accident.
- 3 Whether the ex parte judgment against the applicant should be stayed.
Ratio Decidendi
The court found that the applicant had judgment entered against him ex parte and that his application for review was refused. The applicant's defence was that he was not the owner of the vehicle involved in the accident, which, if established, could result in a successful appeal. The court determined that there was a probable chance of success on appeal and that a stay of execution was warranted to prevent prejudice to the applicant. Accordingly, the application for stay of execution pending appeal was granted.
Court Disposition
Application for stay of execution granted.
Orders
- Stay of execution pending appeal is granted.
- Orders to be served upon the respondent.
Full Case Text
Judgment text and source record
52 paragraphs
Civil Appeal 118 of 2012
Editorial Summary
1. Civil Appeal
2. Civil Practice & Procedure
3. Subject of Subordinate case:
TORT
3. 1 Running down case
3. 2 Pedestrian/motor vehicle accident
3. 3 Sustained injuries
3. 4 Defendant denies allegations
3. 5 No longer owner of vehicle alleged
sold the same.
3. 6 Judgment entered exparte against him.
Application to amend refused.
3. 7 Prays for stay of execution.
4. Application 16th March 2012:
4. 1 That there be stay of execution pending
appeal.
4. 2 Further affidavit filed.
5. Held:
Application for stya of execution granted.
6. Case Law:
7. Advocates:
i) J L Kariuki holding brief for R M Mutiso instructed by M/s R M Mutis & Co Advocates for appellant/ original defendant.
ii) Mwaura Kamau & Co Advocates for respondent/ original plaintiff
REPUBLIC OF KENYA
IN THE HIGH COURT
AT NAIROBI
MILIMANI LAW COURTS
Civil Appeal 118 of 2012
JAMES NGUGI MWANGI …………………….… APPELLANT/ORIGINAL DEFENDANT
VERSUS
PETER NGOCHI NDWIGA…….………….………. RESPONDENT/ORIGINAL PLAINTIFF
(Being an appeal arising from the Ruling of Hon. S. Okato (Senior Principal Magistrate) in Case No. 13161 of 2006 dated 20th February 2012 at Nairobi)
R U L I N G NO. 2
I.INTRODUCTION
1. This court permitted the applicant to file further affidavit to provide this court with further information on this application.
2. It is hereby been produced. That the applicant had in fact had judgment entered exparte against him. He then applied to have the judgment reviewed. This was in fact refused. The applicant filed application seeking stay of execution.
3. The defence was in fact that the defendant was never the owner of the vehicle. The said defendant has probable success, if the appeal is successful.
4. The applicant prays that stay of execution be given.
IIFINDINGS
5. The application for stay of execution be and is hereby granted.
6. That the orders be served upon the respondent.
7. The costs in the appeal.
DATED THIS 26TH DAY OF MARCH 2012 AT NAIROBI
M.A. ANG’AWA
JUDGE
Advocates:
i) J L Kariuki holding brief for R M Mutiso instructed by
M/s R M Mutiso &Co Advocates for appellant/ original defendant.
ii)Mwaura Kamau & Co Advocates for respondent/
original plaintiff