[2008] KEHC 775 (KLR)
The High Court determined that, although the order for stay of execution was issued by the lower court, it has inherent jurisdiction to vary such orders when the appeal is before it. The court recognized the unresolved issues of liability and damages in the appeal but found that the respondent's urgent medical needs...
Source-derived case information.
- Citation
- [2008] KEHC 775 (KLR)
- Parties
- Appellant: Roadtainers (Mombasa) Limited; Respondent: Henry Mwikya Munyao
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 192 of 2008
- Procedural Posture
- Civil Appeal / Interlocutory Application for Variation of Stay Order Pending Appeal
- Outcome
- Application partially allowed.
- Judges
- GG Okwengu
- Legal Topics
- Stay of Execution, Variation of Orders, Interlocutory Applications, Personal Injury Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Roadtainers (Mombasa) Limited
Appellant
Henry Mwikya Munyao
Respondent
Procedural Posture
Civil Appeal / Interlocutory Application for Variation of Stay Order Pending Appeal
Legal Issues
- 1 Whether the High Court has jurisdiction to vary an order for stay of execution made by the magistrate's court pending appeal.
- 2 Whether part of the decretal sum deposited as security should be released to the respondent for urgent medical treatment despite liability being in dispute.
Ratio Decidendi
The High Court determined that, although the order for stay of execution was issued by the lower court, it has inherent jurisdiction to vary such orders when the appeal is before it. The court recognized the unresolved issues of liability and damages in the appeal but found that the respondent's urgent medical needs justified a partial release of the funds. Balancing the interests of justice and the need to preserve the subject matter of the appeal, the court ordered that 25% of the decretal sum be released to the respondent for medical treatment, rather than the half requested, while the remainder continues to be held pending the outcome of the appeal.
Court Disposition
Application partially allowed.
Orders
- 25% of the decretal sum currently deposited in an interest earning account in the joint names of the parties’ advocates shall be released forthwith to the respondent.
- Costs of this application shall be in the appeal.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THEHIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL 192 OF 2008
ROADTAINERS (MOMBASA) LIMITED…..…..APPELLANT
VERSUS
HENRY MWIKYA MUNYAO……..…………...RESPONDENT
R U L I N G
Henry Muikya Munyao who is the respondent to this appeal, has moved the court under Section 3A and 63)(e) of the Civil Procedure Act for an order that half the decretal sum currently deposited in a joint interest earning account be released to the respondent on the grounds that the respondent requires the money for urgent medical treatment of injuries arising from the accident subject of the suit. The respondent has sworn an affidavit in support of the application wherein he depones inter alia that he requires amputation of his left leg as a result of the injuries suffered in the accident.
It is contended on behalf of the appellant that the application is improperly before this court as it seeks to vary an order made in the magistrate’s court. It is further contended that the application is based on a misapprehension of the issues raised in the appeal as it does not appear to take into account that liability is in dispute.
I have considered the application. Although the order for stay of execution pending appeal was issued by the lower court, this court being seized of the appeal, it has inherent powers to make orders in the interest of justice including varying orders made by the lower court. The application is therefore properly before this court.
I have taken note of the fact that the issues raised in the appeal which includes the apportionment of liability, and assessment of damages still remain unresolved. Nonetheless, given the urgent need of the respondent for funds for the medical operation, I find it necessary to vary the order for stay of execution and do order that 25% of the decretal sum currently deposited in an interest earning account in the joint names of the parties’ advocates shall be released forthwith to the respondent.
Costs of this application shall be in the appeal.
Orders accordingly.
Dated and delivered this 24th day of November, 2008
H. M. OKWENGU
JUDGE
In the presence of: -
Advocate for the appellant absent
Maluki for the respondent/applicant