[2021] KEHC 2622 (KLR)
The court found that, although the record from the trial court was incomplete and the circumstances surrounding service of summons were unclear, the interests of justice required that the appellant be granted a stay of execution of the ex parte judgment. This would allow the appellant to pursue its appeal and have...
Source-derived case information.
- Citation
- [2021] KEHC 2622 (KLR)
- Parties
- Appellant: Kenyan Alliance Insurance Company Limited; Respondent: Musa Amalemeba Werangai
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E5 of 2020
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Stay of execution granted on condition of deposit of judgment sum; costs to respondent.
- Judges
- DN Musyoka
- Legal Topics
- Stay of Execution, Ex Parte Judgment, Setting Aside Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenyan Alliance Insurance Company Limited
Appellant
Musa Amalemeba Werangai
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to a stay of execution of the ex parte judgment pending appeal.
- 2 Whether the appellant's failure to enter appearance and file defence was excusable.
- 3 Whether the trial court erred in declining to set aside the ex parte judgment.
Ratio Decidendi
The court found that, although the record from the trial court was incomplete and the circumstances surrounding service of summons were unclear, the interests of justice required that the appellant be granted a stay of execution of the ex parte judgment. This would allow the appellant to pursue its appeal and have its day in court. The stay was made conditional upon the appellant depositing the entire judgment sum in court within 14 days, failing which the stay would lapse. The court emphasized the need to balance the rights of both parties and ensure that the appeal was not rendered nugatory.
Court Disposition
Stay of execution granted on condition of deposit of judgment sum; costs to respondent.
Orders
- Stay of execution of the ex parte judgment in Kakamega CMCCC No. 192B of 2018 granted pending appeal.
- The entire judgment sum in Kakamega CMCCC No. 47 of 2014 to be deposited in court within 14 days; failure to do so will cause the stay to lapse.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CIVIL APPEAL NO. E5 OF 2020
(Being an appeal from the original judgment and decree of Hon. Noelyne Akee, Resident Magistrate, of 16th September 2020 in Kakamega CMCCC No. 192B of 2018)
KENYAN ALLIANCE INSURANCE COMPANY LIMITED................................APPELLANT
VERSUS
MUSA AMALEMBA WERANGAI........................................................................RESPONDENT
RULING
1. What I am called upon to determine is the Motion, dated 4th February 2021, which seeks stay of execution of judgment and decree in Kakamega CMCCC No. 192B of 2018 pending appeal.
2. The trial court had on 16th September 2020 declined to set aside an ex parte judgment. The appellant had been served with summons to enter appearance, together with other accompanying documents. Rather than act on the documents, the same were filed away. The appellant argues that there was honest mistake, inadvertence and lack of lethargy. As a consequence, the appellant did not file defence, and judgment was entered against it.
3. The appeal herein turns on the said ruling of 16th September 2020. The trial court is said to have failed to find that the explanation by the appellant for failing to enter appearance was excusable; failed to find that failure to file defence was honest and unintentional; failed to find the delay in filing application to set aside was excusable, among others.
4. The trial court file was not made available to me, so I am unable to tell firsthand what transpired at the trial court. I have to rely on the record of appeal, which does not appear to be complete, for it does not have a copy of the affidavit of service with respect to service of the initial summons. The ruling itself is equally sketchy on what exactly transpired.
5. I believe justice of the situation militates in favour of the appellant getting stay of execution of the ex parte judgment, to facilitate appeal, so that they can have their day in court. As a condition, the entire judgment sum in Kakamega CMCCC No. 47 of 2014 shall be deposited in court within 14 days, in default of which the stay order shall lapse. The respondent shall have the costs.
6. It is so ordered.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 29TH DAY OF OCTOBER, 2021
W. MUSYOKA
JUDGE