[2021] KEHC 8755 (KLR)
The court found that the applicant had not delayed in bringing the application for stay of execution after the lower court's dismissal of his application to set aside the ex parte judgment. The court was satisfied that the applicant's draft defence raised triable issues, including the respondent's capacity to sue,...
Source-derived case information.
- Citation
- [2021] KEHC 8755 (KLR)
- Parties
- Appellant: Paul Hillary Adawo; Respondent: Erick Omondi Ombewa (Suing as the legal Representative of the estate of Joyce Agnes Eprong (Deceased))
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E177 of 2020
- Procedural Posture
- Civil Appeal / Ruling on Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution allowed on condition.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Execution, Setting Aside Ex Parte Judgment, Fair Hearing Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Hillary Adawo
Appellant
Erick Omondi Ombewa (Suing as the legal Representative of the estate of Joyce Agnes Eprong (Deceased))
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the lower court judgment pending appeal.
- 2 Whether the applicant has demonstrated sufficient cause to warrant setting aside the ex parte judgment.
- 3 Whether the respondent's capacity to sue was properly challenged and constitutes a triable issue.
Ratio Decidendi
The court found that the applicant had not delayed in bringing the application for stay of execution after the lower court's dismissal of his application to set aside the ex parte judgment. The court was satisfied that the applicant's draft defence raised triable issues, including the respondent's capacity to sue, which should have been determined at trial. The applicant's admission of service and explanation for the failure to file a defence was considered an honest demonstration of the desire to be heard. The court concluded that the right to a fair hearing and the interests of justice warranted granting a conditional stay of execution, provided the respondent deposits Kshs. 2 million...
Court Disposition
Application for stay of execution allowed on condition.
Orders
- Respondent to deposit Kshs. 2,000,000 in an interest earning joint account in the names of the advocates on record within 30 days pending the hearing of the appeal.
- Record of appeal to be filed within 30 days from the date of this ruling.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MILIMANI
CIVIL APPEAL NO. E177 OF 2020
PAUL HILLARY ADAWO.........................APPELLANT/APPLICANT
VERSUS
ERICK OMONDI OMBEWA (Suing as the legal Representative of the
estate ofJOYCE AGNES EPRONG (Deceased)............RESPONDENT
RULING
This is an application by way of Notice of Motion dated 5th March 2020 for stay of execution of the judgment of the lower court delivered on 14th February, 2020 and the decree issued on 19th February, 2020. It is brought under Order 10 rule 11,Order 22 rule 22 of the Civil Procedure Rules, Sections 1A,1B,3 and 3A of the Civil Procedure Act.
The applicant was named as the defendant in the lower court. From the record it is admitted that summons to enter appearance and file a defence was served upon the defendant who submitted the same to his insurer. However, no appearance was entered and no defence was filed whereupon an interlocutory judgment was entered and the final judgment subsequently granted.
An application to set aside the ex parte judgment was dismissed by the lower court. It is that dismissal that prompted this appeal. In this application, the applicant is ready to post any security that may be ordered by the court. The application is opposed and there is a replying affidavit sworn by the advocate for the respondent.
The right to a fair hearing is recognized in the Constitution and any party expressing the desire to be heard should be given that opportunity, provided the court is satisfied the ends of justice shall be met and no prejudice may be occasioned to the other party. From the record before the court, the lower court ruling was given on 14th August, 2020 dismissing the applicant’s application to set aside the ex parte judgment. This application was filed 10 days thereafter, that is 24th August, 2020. I find there was no delay in lodging the application.
I have looked at paragraphs 7 to 10 of the supporting affidavit of the application in the lower court where the capacity of the respondent to sue has been questioned. I have also looked at the draft statement of defence presented before the lower court which in my view presents triable issues which should have been subjected to trial. There is therefore an arguable appeal before this court.
The admission that summons were served but misplaced before adverse action was taken against the applicant is in my view, an honest demonstration of the quest to be heard.
I am persuaded the application should be allowed on condition that the respondent shall deposit a sum of Kshs. 2 Million in an interest earning joint account, in the names of the advocates on record within 30 days pending the hearing of the appeal, the record of which should also be filed within 30 days from the date of this ruling. The costs shall abide by the decision of the appeal.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 4TH DAY OF MARCH, 2021.
A. MBOGHOLI MSAGHA
JUDGE