The matter coming up for determination is an application dated 27.05.2025 seeking for the following orders:
i. That the appeal herein has been overtaken by events hence untenable; the judgment sum and costs have been paid and matter settled.
ii. The matter is moot and has been deprived of practical significance and rendered purely academic.
iii. The costs of this application be borne by the appellant.
The appellant herein was a respondent in three suits filed at the magistrate’s court; being Civil claim No E257 of 2022, E258 of 2022 both filed at the small claim court and Civil suit No E010 of 2023 before the chief Magistrate court. The suit against the appellant, then respondent arose from a road traffic accident that occurred on 22nd August 2022 along the Kitengela–Isinya Road involving motorcycle registration number KMDD 136A and motor vehicle registration number KCY 062A, owned by the appellant.
After the conclusion of the matters, the magistrate court held the appellant 100 % liable for the occurrence of the accident and awarded general damages in favour of the claimants.
Dissatisfied with the judgement of the trial court rendered on 1st February 2023, the appellant filed a memorandum of Appeal dated 20th February 2023 being Civil Appeal No E009 of 2023 and E010 of 2023. The grounds of appeal in relation to the two appeals are identical and challenges the trial court holding on liability and quantum. The grounds of appeal in respect to Civil appeal No E102 of 2025 dated 18th July 2025, though different from the other two appeals similarly challenges the trial court findings on liability and quantum in a judgement delivered on 10th July 2025.
Before the first two appeals could progress to hearing, the Respondent filed a Notice of Motion application dated 27th May 2025 seeking to halt the continuation of the appeals for the reasons that the same had been overtaken by events on account of consent dated 7th June 2023 and filed in court on 20th June 2023. In that consent signed by Mutavi & Associates for the claimant on one hand and the firm of Archer & Wilcock allegedly for the respondent, it was agreed that the claim in Kajiado SCCC NO E257 of 2022 be marked as settled and the court file closed. The consent was filed almost five months after the magistrate rendered its decision on 1st February 2023 and four months after the appellant had preferred appeal in respect to EOO9 of 2023 E010 of 2023.
I have perused the record of the magistrate court in SCCC E257 of 2022 and SCCC E258 of 2022. The Consent dated 7th June 2023 is not minuted and or adopted as the order of the court. The proceedings of the court terminated on 18th January 2023 when the court reserved the date of judgement and its subsequent delivery on 1st February 2023 as schedule. My view is that at the point the court rendered its decision on 1st February 2023, it determined all the issued the parties had presented before it and therefore became functus officio.
Upon determination by the court of the quantum payable to the claimants, the appellant Insurer which had been following the matters on the sidelines engaged the claimants counsel and settled the amount ordered by the court. It is on the basis of that settlement that the Advocate for the respondents/Claimant filed the present application contending that the presents appeals have been compromised and overtaken by events.
The appellants are of the contrary view. It is submitted on behalf of the appellant that payment of the decretal sum was made under threat of imminent execution and does not extinguish the appellant constitutional and statutory right of appeal. The appellant also challenges the purported representation by the firm of Archer & Wilcock and the subsequent consent entered without the appellant knowledge or representation.
I have considered the application dated 27th may 2025 together with the supporting affidavit of Nicholas Mutavi Mulwa dated 27th May 2025 together with the annexures thereto, as well as the appellant replying affidavit dated 9th June 2025. I have also considered the parties submissions and the authorities relied on.
It is clear from the outset that the appellant who was sued before the magistrate court was dissatisfied with the decision of the trial magistrate in its entirety and timeously filed the present appeal on 20th February 2023 long before the consent was entered into on 7th June 2023. The record of appeal was filed and the lower court file called in preparation for the hearing. It is therefore clear that the appellant was and is still desirous of having the appeal heard and determined on its merit. The payment of the decretal amount by the appellants insurer, G.A. Insurance Company and the subsequent consent with the claimants’ counsel cannot and should not be allowed to deprive the appellant of his right to contest the findings of the court below. To do so would be an affront to the appellant guaranteed constitutional and statutory right to access the appellate court for redress which this court cannot countenance. Why should the applicant/Respondent who was a successful party in the magistrate court and who got paid the decretal sum by the appellant insurer now want to curtail the appellants right to challenge the lower court decision on liability and quantum?
The appellant also challenged the consent entered by the firm of Acher & Wilcock Advocates and Mutavi & associates in which the appellants right to pursue the appeals was purportedly taken away. G.A. Insurance Company and the firm of Archer & Wilcock did not actively participate in the proceeding before the trial court. The firm was following the proceedings on the touchline. Its role was peripheral limited to informing the insurance company on the outcome of the claim and advising on the way forward which It perfectly did. It was therefore wrong for the Insurance company Advocates to independently and without the involvement of the appellant counsel to enter into a consent whose terms affected the appellant right of appeal.
Consequently, I make the following Order;
1 THAT the application dated 27th May 2025 is Dismissed.
2 THAT as a result of the outcome above and to ensure the appeals herein are heard and determined expeditiously, the Notice of Motion dated 18th day of July 2025 is allowed.
3 THAT Civil Appeals No E009 of 2023 (arising from judgement in Kajiado Small Claims Court Civil Case No E0257 of 2022 and Civil Appeal No E010 of 2023(arising from judgement in Kajiado Small Claims Court Civil Case No E0258 of 2022) and the Instant Appeal be and is hereby Consolidated and E012 of 2025 be the lead file.
4 THAT the matter shall be mentioned on 24th June 2025 before High court Kajiado for further directions on the hearing of the appeals.
i. That the appeal herein has been overtaken by events hence untenable; the judgment sum and costs have been paid and matter settled.
ii. The matter is moot and has been deprived of practical significance and rendered purely academic.
iii. The costs of this application be borne by the appellant.
The appellant herein was a respondent in three suits filed at the magistrate’s court; being Civil claim No E257 of 2022, E258 of 2022 both filed at the small claim court and Civil suit No E010 of 2023 before the chief Magistrate court. The suit against the appellant, then respondent arose from a road traffic accident that occurred on 22nd August 2022 along the Kitengela–Isinya Road involving motorcycle registration number KMDD 136A and motor vehicle registration number KCY 062A, owned by the appellant.
After the conclusion of the matters, the magistrate court held the appellant 100 % liable for the occurrence of the accident and awarded general damages in favour of the claimants.
Dissatisfied with the judgement of the trial court rendered on 1st February 2023, the appellant filed a memorandum of Appeal dated 20th February 2023 being Civil Appeal No E009 of 2023 and E010 of 2023. The grounds of appeal in relation to the two appeals are identical and challenges the trial court holding on liability and quantum. The grounds of appeal in respect to Civil appeal No E102 of 2025 dated 18th July 2025, though different from the other two appeals similarly challenges the trial court findings on liability and quantum in a judgement delivered on 10th July 2025.
Before the first two appeals could progress to hearing, the Respondent filed a Notice of Motion application dated 27th May 2025 seeking to halt the continuation of the appeals for the reasons that the same had been overtaken by events on account of consent dated 7th June 2023 and filed in court on 20th June 2023. In that consent signed by Mutavi & Associates for the claimant on one hand and the firm of Archer & Wilcock allegedly for the respondent, it was agreed that the claim in Kajiado SCCC NO E257 of 2022 be marked as settled and the court file closed. The consent was filed almost five months after the magistrate rendered its decision on 1st February 2023 and four months after the appellant had preferred appeal in respect to EOO9 of 2023 E010 of 2023.
I have perused the record of the magistrate court in SCCC E257 of 2022 and SCCC E258 of 2022. The Consent dated 7th June 2023 is not minuted and or adopted as the order of the court. The proceedings of the court terminated on 18th January 2023 when the court reserved the date of judgement and its subsequent delivery on 1st February 2023 as schedule. My view is that at the point the court rendered its decision on 1st February 2023, it determined all the issued the parties had presented before it and therefore became functus officio.
Upon determination by the court of the quantum payable to the claimants, the appellant Insurer which had been following the matters on the sidelines engaged the claimants counsel and settled the amount ordered by the court. It is on the basis of that settlement that the Advocate for the respondents/Claimant filed the present application contending that the presents appeals have been compromised and overtaken by events.
The appellants are of the contrary view. It is submitted on behalf of the appellant that payment of the decretal sum was made under threat of imminent execution and does not extinguish the appellant constitutional and statutory right of appeal. The appellant also challenges the purported representation by the firm of Archer & Wilcock and the subsequent consent entered without the appellant knowledge or representation.
I have considered the application dated 27th may 2025 together with the supporting affidavit of Nicholas Mutavi Mulwa dated 27th May 2025 together with the annexures thereto, as well as the appellant replying affidavit dated 9th June 2025. I have also considered the parties submissions and the authorities relied on.
It is clear from the outset that the appellant who was sued before the magistrate court was dissatisfied with the decision of the trial magistrate in its entirety and timeously filed the present appeal on 20th February 2023 long before the consent was entered into on 7th June 2023. The record of appeal was filed and the lower court file called in preparation for the hearing. It is therefore clear that the appellant was and is still desirous of having the appeal heard and determined on its merit. The payment of the decretal amount by the appellants insurer, G.A. Insurance Company and the subsequent consent with the claimants’ counsel cannot and should not be allowed to deprive the appellant of his right to contest the findings of the court below. To do so would be an affront to the appellant guaranteed constitutional and statutory right to access the appellate court for redress which this court cannot countenance. Why should the applicant/Respondent who was a successful party in the magistrate court and who got paid the decretal sum by the appellant insurer now want to curtail the appellants right to challenge the lower court decision on liability and quantum?
The appellant also challenged the consent entered by the firm of Acher & Wilcock Advocates and Mutavi & associates in which the appellants right to pursue the appeals was purportedly taken away. G.A. Insurance Company and the firm of Archer & Wilcock did not actively participate in the proceeding before the trial court. The firm was following the proceedings on the touchline. Its role was peripheral limited to informing the insurance company on the outcome of the claim and advising on the way forward which It perfectly did. It was therefore wrong for the Insurance company Advocates to independently and without the involvement of the appellant counsel to enter into a consent whose terms affected the appellant right of appeal.
Consequently, I make the following Order;
1 THAT the application dated 27th May 2025 is Dismissed.
2 THAT as a result of the outcome above and to ensure the appeals herein are heard and determined expeditiously, the Notice of Motion dated 18th day of July 2025 is allowed.
3 THAT Civil Appeals No E009 of 2023 (arising from judgement in Kajiado Small Claims Court Civil Case No E0257 of 2022 and Civil Appeal No E010 of 2023(arising from judgement in Kajiado Small Claims Court Civil Case No E0258 of 2022) and the Instant Appeal be and is hereby Consolidated and E012 of 2025 be the lead file.
4 THAT the matter shall be mentioned on 24th June 2025 before High court Kajiado for further directions on the hearing of the appeals.