[2014] KEHC 7982 (KLR)
The court found that since the judgment in the test suit has been challenged by a notice of appeal and execution of the decree has been stayed pending the outcome of the intended appeal, it would not be proper to permit any further action to be taken upon the impugned judgment before the disposal of the appeal or...
Source-derived case information.
- Citation
- [2014] KEHC 7982 (KLR)
- Parties
- Plaintiff: Susan Kangai Moronge; Defendant: Equator Distributors (K) Ltd & Others; Third Party: Associated Motors Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1523 of 2001
- Procedural Posture
- Civil Case / Ruling on Third Party Application for Judgment on Liability
- Outcome
- application dismissed
- Judges
- DW Mbuteti
- Legal Topics
- Stay of Execution, Judgment on Liability, Third Party Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Susan Kangai Moronge
Plaintiff
Equator Distributors (K) Ltd & Others
Defendant
Associated Motors Limited
Third Party
Procedural Posture
Civil Case / Ruling on Third Party Application for Judgment on Liability
Legal Issues
- 1 Whether judgment on liability should be entered in favour of the third party based on the judgment in the test suit.
- 2 Whether the application is premature given the pending appeal and stay of execution in the test suit.
Ratio Decidendi
The court found that since the judgment in the test suit has been challenged by a notice of appeal and execution of the decree has been stayed pending the outcome of the intended appeal, it would not be proper to permit any further action to be taken upon the impugned judgment before the disposal of the appeal or notice of appeal. Therefore, the application by the Third Party for judgment on liability was dismissed as premature.
Court Disposition
application dismissed
Orders
- The Third Party's application for judgment on liability is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
CIVIL CASE NO 1523 OF 2001
SUSAN KANGAI MORONGE.............................................PLAINTIFF
V E R S U S
EQUATOR DISTRIBUTORS (K) LTD & OTHERS….…..DEFENDANTS
AND
ASSOCIATED MOTORS LIMITED…………..………....THIRD PARTY
R U L I N G
The Third Party herein has applied by notice of motion dated 31st August, 2013 for judgment on liability in this suit to be entered in terms of the judgment delivered on 30th August, 2011 in the “test suit”(Nairobi HCCC NO. 21st June 1999),and upon such entry of judgment on liability, the suit herein as against the 3Third Party be dismissed in terms of said judgment.
The Plaintiff supports the Third Party’s application.
The 1st Defendant has opposed the application by replying affidavit filed on 28th February, 2014. It is sworn by Frederick Otieno Mege, the 1st Defendant’s advocate. Grounds of opposition include -
That a notice of appeal was duly lodged against the judgment in the test suit and duly served.
That a consent order for stay of execution of the test suit judgment was entered on 30th January, 2014 pending disposal of the intended appeal or appeals.
That the present application is premature, and the order sought is intended to frustrate the intended appeals.
I have considered the submissions of the learned counsels appearing. No authorities were cited.
It is conceded that the judgment in the test suit has been challenged and notice of appeal in that regard lodged. It is also conceded that execution of the decree flowing from that judgment was stayed pending disposal of the intended appeal.
In the circumstances I hold that it would not be proper to permit any further action to be taken upon the impugned judgment in the test suit before disposal of the intended appeal – or the notice of appeal.
I will in the event refuse the application for now. It is dismissed, but with no order as to costs. It is so ordered.
DATED AND SIGNED AT NAIROBI THIS 27TH DAY OF MAY 2014
H. P. G. WAWERU
JUDGE
DELIVERED AT NAIROBI THIS 30TH DAY OF MAY 2014