[2015] KEHC 1022 (KLR)
The court held that since the judgment in the test suit has not been stayed and there is no evidence of a stay of execution, it is appropriate to enter judgment on liability in this suit in accordance with the apportionment determined in the test suit. The pending indemnity claim by the 1st defendant against its...
Source-derived case information.
- Citation
- [2015] KEHC 1022 (KLR)
- Parties
- Plaintiff: Martin Mwangi Nyutho; Defendant: Alkasons Transporters Limited; Defendant: Njehia Samuel
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 296 of 2010
- Procedural Posture
- Civil Case / Ruling on Application for Judgment on Liability Based on Test Suit
- Outcome
- application allowed
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Apportionment of Liability, Stay of Proceedings, Formal Proof, Indemnity Claims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Martin Mwangi Nyutho
Plaintiff
Alkasons Transporters Limited
Defendant
Njehia Samuel
Defendant
Procedural Posture
Civil Case / Ruling on Application for Judgment on Liability Based on Test Suit
Legal Issues
- 1 Whether judgment on liability in the test suit should be adopted in this suit.
- 2 Whether the pending appeal and indemnity claim affect the entry of judgment on liability.
- 3 Whether proceedings should be stayed pending determination of the appeal or indemnity suit.
Ratio Decidendi
The court held that since the judgment in the test suit has not been stayed and there is no evidence of a stay of execution, it is appropriate to enter judgment on liability in this suit in accordance with the apportionment determined in the test suit. The pending indemnity claim by the 1st defendant against its insurer does not affect the plaintiff's right to judgment on liability, as it concerns a separate contractual relationship. The mere filing of a notice of appeal does not stay proceedings or execution unless a stay is granted. Therefore, the application for judgment on liability is allowed, and the matter should proceed to formal proof.
Court Disposition
application allowed
Orders
- Judgment on liability is entered in terms of the judgment delivered in the test suit (Nairobi HCCC No. 166 of 2009), apportioning liability at 40% against the 2nd Defendant and 60% against the 1st Defendant.
- The suit shall proceed to formal proof.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL DIVISION
CIVIL CASE NO 296 OF 2010
MARTIN MWANGI NYUTHO............................................PLAINTIFF
V E R S U S
ALKASONS TRANSPORTERS LIMITED........1st DEFENDANT
NJEHIA SAMUEL.............................................2ND DEFENDANT
RULING
The Plaintiff herein has applied by notice of motion dated 11th March, 2015 for judgment on liability in this suit to be entered in terms of the judgment delivered on 26th February, 2015 in the “test suit”(Nairobi HCCC NO. 166 OF 2009),whereupon the liability was determined at 40% against the 2nd Defendant and 60% against the 1st Defendant.
The 1st Defendant has opposed the application by replying affidavit filed on 5th June, 2015. It is sworn by Mohamed Abubakar, the 1st Defendant’s director. Grounds of opposition include -
i. That it has lodged HCCC No. 925 of 2009 whereby it claims indemnity from its insurer in terms of its contractual obligations with regards to that Judgement.
ii. That formal proof proceedings should be held in abeyance until that suit is formally heard and decided.
iii. That a notice of appeal has been duly lodged against the apportionment of liability in the judgment in the test suit and hence proceedings herein should wait for that appeal to be heard and determined.
Submissions of the learned counsels appearing were filed and authorities cited.
It is conceded that the judgment in the test suit has been challenged and notice of appeal in that regard lodged. However, it has not been shown whether execution of the decree flowing from that judgment was stayed pending disposal of the intended appeal.
The other matter mentioned by the 1st Defendant where it is pursuing its insurer has no effect on this and other matters related to the liability of the 1st Defendant as it involves performance of the contract between it and the insurer.
In the circumstances I hold that it is appropriate to grant the reliefs sought. Accordingly this application is allowed. As the stay barring this matter from proceeding was lifted when Judgement on liability was proclaimed, it should now proceed to formal proof.
Costs shall be in the cause.
It is so ordered.
Dated and delivered at Nairobi this 22nd Day of October, 2015.
A.MBOGHOLI MSAGHA
JUDGE