Automated Summary
Key Facts
The case involves two applications: (1) Ngere Tea Factory Limited and Samuel Kibe Mungai seeking leave to appeal out of time and a stay of execution of a decree pending appeal, and (2) David Musyoka Munini requesting release of half the decretal sum deposited in court. The court allowed the applicants' prayer for leave to appeal out of time (7-day delay) and granted a stay of execution, permitting them to file an appeal within 14 days. It also released KShs 3,500,000 to the first respondent from the KShs 7,618,256 deposited by the applicants. The trial court found the accident was caused entirely by the driver of the other vehicle, assigning 100% liability, but the appeal challenges the apportionment of liability rather than the outright finding. The applicants conceded partial liability. The balance of the deposit serves as security for the stay of execution. The court refused the respondent's fourth prayer but required the applicants to settle auctioneer's charges to release attached properties. Costs are contingent on whether an appeal is filed.
Issues
- The 1st Respondent requested release of half the decretal sum (KShs 3,500,000/00) from the KShs 7,618,256/00 deposited by the Applicants. The court granted this, directing the payment to the 1st Respondent's advocates as partial judgment satisfaction, with the remaining amount securing the stay of execution pending appeal.
- The Applicants did not outright challenge the trial court's 100% liability assignment to the other vehicle driver but disputed the apportionment of liability. The court determined that partial payment to the 1st Respondent was fair given the Applicants' acceptance of some liability, while the appeal process addresses the apportionment question.
- The Applicants requested leave to appeal out of time (7 days delayed) and a stay of execution of the decree pending the appeal. The court allowed this application, permitting the Applicants to file their memorandum of appeal within 14 days of the ruling, with the balance of the decretal sum (KShs 7,618,256/00) serving as security for the stay.
Holdings
- The court allowed the Applicants' request for leave to appeal out of time due to a 7-day delay, which was not resisted by the Respondents. The Applicants were granted 14 days to file their memorandum of appeal.
- The court granted a stay of execution of the decree pending the disposal of the appeal. The Applicants must settle auctioneer's charges to release their attached properties.
- Costs of the applications were ordered to go to the appeal. If no appeal is filed, the costs will be awarded to the Respondents.
- The Applicants accepted partial liability for the accident, as the draft appeal focused on apportionment rather than outright challenging the trial court's 100% liability assignment to the other driver.
- The court ruled that the 1st Respondent is entitled to KShs 3,500,000 of the judgment sum deposited in court, to be paid through his advocates. The remaining deposit serves as security for the stay of execution.
Remedies
- Stay of execution of the decree is granted pending the appeal. The remaining KShs 4,118,256 in the court deposit will act as security for this stay.
- Allowed payment of KShs 3,500,000 to the 1st Respondent from the court deposit as a portion of the judgment sum. The balance of the deposit serves as security for the stay of execution of the decree.
- Prayer 4 is refused. Applicants must settle auctioneer's charges to release any of their properties that were attached before the 01/12/2016 court order.
Legal Principles
- The court ordered that costs of the applications would be borne by the parties in the appeal. If no appeal is filed, costs would revert to the respondents, reflecting standard costs principles applied in procedural decisions.
- The court granted leave to appeal out of time where the delay was minimal (7 days) and the opposing party did not resist. The court also exercised discretion to release part of the judgment sum (KShs 3,500,000) to the respondent immediately, considering the trial court's 100% liability finding and the appeal's focus on apportionment rather than outright liability challenge.
Judge Name
H P G WAWERU
Passage Text
- One would have expected that if the trial court's finding on liability was to be challenged outright, that would be the first ground of appeal. However, the first ground of appeal in the draft memorandum is that the trial court failed to apportion liability fairly between the parties. By that complaint the Applicants obviously accept a measure of liability to the accident. The rest of the grounds of appeal are on quantum. There is thus no outright challenge to the trial court's finding on liability, only on apportionment thereof.
- I deem it fair and just that a portion of the judgment sum ought to be paid to the 1st Respondent forthwith. That portion will be KShs 3,500,000/00, and the same shall be paid through his advocates on record from the sum of KShs.7,618,256/00 already deposited in court by the Applicant on 24/01/2017 pursuant to the order of this court of 01/12/2016. The balance of the deposit shall be the security for stay of execution of decree, now hereby granted, pending disposal of the appeal to be filed.
- learned counsel for the Respondents conceded that the delay in filing appeal was only (7) days. He stated further that leave to appeal out of time would not be resisted.