[2021] KEHC 6169 (KLR)
The court found that the appellant had substantially complied with the conditional stay orders by paying Kshs. 1,500,000 to the respondent's advocate and partially depositing the balance in the escrow account. Recognizing that the delay in full compliance was due to the insurer's capped liability and not willful...
Source-derived case information.
- Citation
- [2021] KEHC 6169 (KLR)
- Parties
- Applicant: Silvanus Kizito; Respondent: Edith Nkriote Mwiti
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 46 of 2020
- Procedural Posture
- Civil Appeal / Interlocutory Application Ruling on Compliance With Conditional Stay Orders
- Outcome
- Time for compliance with the escrow deposit order enlarged by 14 days; execution stayed; directions given for expeditious hearing of the appeal.
- Judges
- CA Otieno
- Legal Topics
- Stay of Execution, Conditional Stay Orders, Insurance Liability Cap, Escrow Payments
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Silvanus Kizito
Applicant
Edith Nkriote Mwiti
Respondent
Procedural Posture
Civil Appeal / Interlocutory Application Ruling on Compliance With Conditional Stay Orders
Legal Issues
- 1 Whether the appellant has complied with the conditional stay orders regarding payment into escrow account.
- 2 Whether the court should enlarge time for compliance with the escrow deposit order.
- 3 Whether execution should be allowed to proceed pending determination of the appeal.
Ratio Decidendi
The court found that the appellant had substantially complied with the conditional stay orders by paying Kshs. 1,500,000 to the respondent's advocate and partially depositing the balance in the escrow account. Recognizing that the delay in full compliance was due to the insurer's capped liability and not willful disregard of court orders, and that the appellant acted in good faith by seeking a short extension, the court invoked its overriding objectives and inherent powers to enlarge the time for compliance by 14 days. The court further held that allowing execution to proceed or remitting the file to the trial court would not serve the interests of justice, given that the appeal had been...
Court Disposition
Time for compliance with the escrow deposit order enlarged by 14 days; execution stayed; directions given for expeditious hearing of the appeal.
Orders
- The shortfall in the escrow account to be deposited within 14 days from the date of the ruling.
- Timelines set in the ruling of 15/2/2021 are enlarged by 14 days.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
CIVIL APPEAL NO. 46 OF 2020
SILVANUS KIZITO...............................................APPLICANT
VERSUS
EDITH NKIROTE MWITI..................................RESPONDENT
RULING
1. It is clear from the submissions made by both sides that the appellant did pay to Mr. Kaburu’s client the sum of Kshs. 1,500,000 in time and in full compliance with the orders of the court.
2. It is equally clear that the balance then to be deposited in the escrow account ought to have been Kshs. 2,362,498. That has been done partially and not in full. That is a clear default by the appellant.
3. However, I appreciate the appellant’s counsel to say that the payment is by the insurer and not the appellant in person. I also appreciate that the Insurance Act, caps the liability of an insurer to Kshs. 3,000,000 for each single claim.
4. That the appellant has complied with the court order to a very large extent when put in the light of the request by its counsel for a period of only 14 days to make good the default, persuades me that the appellant is acting in good faith and not one out of disregard the court orders.
5. For that reason, I do invoke the overriding objectives of the court and the inherent power of the court and direct that the short fall be deposited into the escrow account already established within 14 days from today. For that reason the timelines set in the ruling of 15/2/2021 is thus enlarged by another 14 days. Time should be of essence.
6. Having said so, and noting that the appeal has been admitted and appellants submissions filed, I do consider it not to serve the interests of justice in the appeal, to allow execution to proceed and stall the determination of this appeal, by remitting the trial court file back to the trial court. I decline that request.
7. I direct that the appeal be fast tracked by the following steps being taken-;
a. Mr. Kaburu to file and serve any supplementary record of appeal and submissions within 21 days from today.
b. Mention on 29/7/2021 for further orders.
DATED SIGNED AND DELIVERED AT MERU VIA MICROSOFT TEAMS THIS 9TH DAY OF JUNE 2021
Patrick J O Otieno
Judge