[2019] KEHC 9069 (KLR)
The court determined that since part of the judgment sum is undisputed, it should be paid to the respondent without delay, as withholding it would serve no interest of justice. The disputed sum, together with costs and interest, should be secured in an escrow account pending the outcome of the intended appeal. The...
Source-derived case information.
- Citation
- [2019] KEHC 9069 (KLR)
- Parties
- Plaintiff: Seleman Koola Dosho; Defendant: Nelson Njenga Munene; Defendant: Diani Smooth Transporters; Defendant: Ogolla Jacob; Defendant: Kimani Joseph
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Cause 122 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time and Stay Pending Appeal
- Outcome
- Application for extension of time and stay granted on conditions.
- Judges
- CA Otieno
- Legal Topics
- Stay of Execution, Extension of Time, Escrow Accounts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Seleman Koola Dosho
Plaintiff
Nelson Njenga Munene
Defendant
Diani Smooth Transporters
Defendant
Ogolla Jacob
Defendant
Kimani Joseph
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time and Stay Pending Appeal
Legal Issues
- 1 Whether time should be extended for the applicant to file an appeal.
- 2 Whether a stay of execution should be granted pending appeal.
- 3 How the undisputed and disputed sums should be handled pending appeal.
Ratio Decidendi
The court determined that since part of the judgment sum is undisputed, it should be paid to the respondent without delay, as withholding it would serve no interest of justice. The disputed sum, together with costs and interest, should be secured in an escrow account pending the outcome of the intended appeal. The court granted extension of time for both parties to file appeal and cross-appeal, and ordered a conditional stay of execution. Failure to comply with the payment or deposit conditions would result in the lapse of the stay and allow the respondent to execute for the entire sum awarded at trial.
Court Disposition
Application for extension of time and stay granted on conditions.
Orders
- Time is extended for the applicant to file an appeal within 7 days; respondent may file a cross appeal within the same period.
- The undisputed sum of Kshs.2,418,289 to be paid to the respondent within 30 days.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
MISC. CAUSE NO. 122 OF 2019
SELEMAN KOOLA DOSHO................................PLAINTIFF
VERSUS
1. NELSON NJENGA MUNENE
2. DIANI SMOOTH TRANSPORTERS
3. OGOLLA JACOB
4. KIMANI JOSEPH..................................DEFENDANTS
R U L I N G
1. Having heard the counsel from both parties, it is common ground that there is a sum, part of the judgment, which is not in dispute and will not be subject of the appeal to be filed.
2. The Respondent counsel says that if the undisputed sum is paid to her client she concedes to the time being extended and stay being granted on conditions that the disputed sum is keep in an escrow account. The Applicant on the other side says their only ground of appeal turns upon the choice of a multiplicand adopted by the trial court.
3. I have given due regard to the submissions of the parties and I take the view that the court ought not to be engaged on a non-disputed matter. Accordingly therefore I make the following orders:-
i. Time is extended for the Applicant to file an appeal. That be done within 7 days from today. The Respondent equally get the leave to file a cross appeal within the same period.
ii. Since the entitlement of the respondent to the sum of Kshs.2,418,289 is not dispute, it would serve no interest of justice for the said sum to be kept away from the Respondent. Let that sum be paid out within 30 days from today.
4. I hesitate to make an order for the payment of costs and interests just now because I have not been told if the same have been assessed or agreed on. Instead I direct that the disputed sum of Kshs.613,653/= plus costs and interests be kept into an escrow account in the joint names of the Advocates for the parties. The deposit be made within 30 days from today. On those terms I grant stay pending the filing and determination of the intended appeal.
5. In the event that the payment to the Respondent is not made or if it is the deposit which is not effected in the sum and within the time ordered the stay I have granted herein shall lapse and the Respondent shall be at liberty to execute for the entire sum awarded at trial.
6. Costs in the cause.
Dated and delivered at Mombasa this 13th day of March 2019.
P.J.O. OTIENO
JUDGE