[1993] KECA 56 (KLR)
The Court of Appeal found that the applicants had been prejudiced by the respondents' failure to involve them in the preparation of the decree and the assessment of damages, both of which were conducted in their absence. The court held that these procedural breaches were significant, as they deprived the applicants...
Source-derived case information.
- Citation
- [1993] KECA 56 (KLR)
- Parties
- Applicant: Mbothu & 8 Others; Respondent: Waitimu & 10 Others
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 233 of 1993
- Procedural Posture
- Stay Application / Application for Stay of Execution Pending Appeal
- Outcome
- application allowed
- Legal Topics
- Stay of Execution, Ex Parte Judgment, Setting Aside Judgment, Assessment of Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mbothu & 8 Others
Applicant
Waitimu & 10 Others
Respondent
Procedural Posture
Stay Application / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicants are entitled to a stay of execution of the decree pending appeal.
- 2 Whether the ex parte judgment and assessment of damages were irregular due to procedural breaches.
- 3 Whether failure to involve applicants in decree preparation and assessment of damages caused prejudice.
Ratio Decidendi
The Court of Appeal found that the applicants had been prejudiced by the respondents' failure to involve them in the preparation of the decree and the assessment of damages, both of which were conducted in their absence. The court held that these procedural breaches were significant, as they deprived the applicants of the opportunity to challenge a substantial damages award. Furthermore, the assessment of damages proceeded after the death of parties without substitution, contrary to the rules. The court concluded that the applicants had an arguable appeal and that, if a stay was not granted, the appeal would be rendered nugatory. Therefore, the court allowed the application for stay of...
Court Disposition
application allowed
Orders
- Stay of execution of the decree issued on 22nd March, 1993, and the decision of 11th August, 1993, is granted until the hearing and final determination of the intended appeal or further order.
- Costs to be in the appeal.
Full Case Text
Judgment text and source record
25 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(Coram: Kwach, Akiwumi &Tunoi JJ A)
CIVIL APPLICATION NO NAI 233 OF 1993
MBOTHU & 8 OTHERS………..….…APPLICANTS
VERSUS
WAITIMU & 10 OTHERS…...……..RESPONDENTS
(Appeal from the Ruling of the High Court at Nairobi
(Shields J) delivered on August 11, 1993)
RULING
This is an application under rule 5(2) (b) of the Court of Appeal Rules for a stay of the order of Shields J made on 11th of August, 1993, by which he dismissed an application by the applicants to set aside an ex partejudgment obtained against them by the respondents on 1st February, 1993. By that judgment and decree, the applicants were ordered to pay the respondents damages in excess of Shs 1,680,000/- together with interest back-dated to 8th December, 1983.
On the day the suit came before the learned judge for assessment of damages, an application was made on behalf of the applicants for an adjournment on the ground that Mr Nowrojee who was acting for them in the matter was in Mombasa. The application was refused and counsel who held Mr Nowrojee’s brief for the purpose of the application for adjournment then left, taking no further part in the proceedings. Subsequently an application was made by the applicants to set aside that ex partejudgment and the learned judge dismissed it, giving rise to the present application.
Having obtained the ex partejudgment, the respondent’s advocates then caused a decree to be issued without any reference to the applicants’ advocates contrary to the mandatory provision of order 20 rule 7 of the Civil Procedure Rules governing the preparation of decrees. This omission has not been seriously denied and Mr Baiya, for the respondents, submitted that even if that was true, no prejudice has been caused to the applicants. In our view, the fact that the applicants have been deprived of an opportunity to challenge the quantum of damages awarded against them which in the event turned out to be colossal is some evidence of prejudice. The assessement was undertaken in their absence and the circumvention of the rules governing the preparation of decrees must have been intended to make it difficult, if not impossible, for the applicants to do anything about the award. This Court will not allow any party to flout the rules of procedure.
The second point taken by Mr Nowrojee was that the assessment was undertaken after two of the plaintiffs and one defendant had died without any application being made for the substitution. As death took place before the conclusion of the trial, order 23 r 11 cannot be of any assistance to the respondents.
All in all, we are satisfied that the applicants have an arguable appeal which, if successful, would be rendered nugatory if a stay is refused. Accordingly, we allow this application and stay the execution of the decree issued on 22nd March, 1993, and the decision of 11th August, 1993, until the hearing and final determination of the intended appeal or further order. Costs to be in the appeal.
Dated and Delivered at Nairobi this 10th day of December, 1993
R.O. KWACH
………………………….
JUDGE OF APPEAL
A.K. AKIWUMI
………………………….
JUDGE OF APPEAL
P.K.TUNOI
………………………….
JUDGE OF APPEAL