[2018] KEHC 6915 (KLR)
The court found that the applicant had demonstrated an arguable appeal, particularly regarding the lack of reasons for the award of throw away costs by the trial magistrate. The court also considered the principle of access to justice and determined that granting a stay of proceedings would not prejudice the...
Source-derived case information.
- Citation
- [2018] KEHC 6915 (KLR)
- Parties
- Appellant: Sheila Wambui Muturi; Respondent: Peter Macharia Muiru
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 102 of 2017
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Proceedings Pending Appeal
- Outcome
- Application for stay of proceedings allowed.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Proceedings, Interlocutory Judgment, Setting Aside Judgment, Throw Away Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sheila Wambui Muturi
Appellant
Peter Macharia Muiru
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Proceedings Pending Appeal
Legal Issues
- 1 Whether a stay of proceedings in the lower court should be granted pending the hearing and determination of the appeal.
- 2 Whether the trial magistrate exercised discretion properly in awarding throw away costs without assigning reasons.
Ratio Decidendi
The court found that the applicant had demonstrated an arguable appeal, particularly regarding the lack of reasons for the award of throw away costs by the trial magistrate. The court also considered the principle of access to justice and determined that granting a stay of proceedings would not prejudice the respondent, given the relative recency of the lower court case. The court exercised its discretion in favour of the applicant, allowing the application for stay of proceedings pending the hearing and determination of the appeal, and directed the timely filing and service of the record of appeal.
Court Disposition
Application for stay of proceedings allowed.
Orders
- There shall be a stay of the lower court proceedings until the appeal is heard and determined.
- The record of appeal shall be filed and served 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 NAIROBI
CIVIL APPEAL NO. 102 OF 2017
SHEILA WAMBUI MUTURI......................APPELLANT
VERSUS
PETER MACHARIA MUIRU.................RESPONDENT
RULING
There is an ongoing Civil Case No. 4698 of 2014 in the lower court. The plaintiff filed the case against the defendant vide a plaint dated 10th August and filed on 13th August, 2014 for general damages and other costs following a road traffic accident. Upon service of summons to enter appearance, the defendant is said to have delayed in filing defence. The plaintiff applied for and obtained an interlocutory judgment against the defendant.
The defendant then moved the court to set aside the said interlocutory judgment which application was heard by the trial magistrate. The learned trial magistrate then made the final determination which in part reads as follows,
“The ex parte judgment against the defendant is set aside and given that a defence was filed on 1st December, 2014, there is no need of filing a 2nd draft defence filed together with this application. I am satisfied that the ex-parte judgment was regular and proper in law. The plaintiff is awarded the costs of this application. The plaintiff is also awarded throw away costs of Kshs. 100,000. The proceedings of 22nd September, 2016 are not set aside as the defendant was duly represented and counsel for the defendant cross-examined the plaintiff. The case to proceed from where it had reached.”
The defendant was aggrieved by that ruling and filed a Memorandum of Appeal on 9th March, 2017.
There is now before me an application by way of Notice of Motion dated 7th and filed on 8th September, 2017 for the substantive order that there be a stay of proceedings in the lower court pending the hearing and determination of the appeal. The grounds upon which the order is sought are set out on the face of the application and there is a supporting affidavit sworn by the advocate for the defendant.
The application is opposed and there is a replying affidavit sworn by the plaintiff/respondent. Both counsel have filed submissions to address the application. The application to set aside the interlocutory judgment which had been entered in the lower court was determined in the exercise of the discretion of the trial court.
The present application is premised among other provisions on Order 42 Rule 6 (1) and Order 43 Rule 2 of the Civil Procedure Rules and under Article 159 (2) of the Constitution.
I have considered all the material presented before me. It is true that the applicant may have an arguable appeal especially on the ground that no reasons were assigned to the award of thrown away costs. There is also the subject of access to justice that may be compromised if a stay is not granted. The lower court case is relatively new and I believe that no prejudice shall be occasioned in the event stay is granted in the circumstances of this case.
Without saying more therefore, the application is allowed and there shall be a stay of the lower court proceedings until the appeal is heard and determined. I direct that the record of appeal shall be filed and served within 30 days from the date of this ruling so that directions are given for the hearing. The costs of this application shall be on appeal.
Dated, signed and delivered at Nairobi this 20th Day of March, 2018.
A. MBOGHOLI MSAGHA
JUDGE