Skip to content
JudgmentDREAMLINE EXPRESS LIMITED VS IRENE AKINYI3 min read

DREAMLINE EXPRESS LIMITED VS IRENE AKINYI

High Court at Makueni High Court · · Matheka, Teresia Mumbua


RULING

What is before me is the Notice of Motion dated 30th November 2022 brought Under Order 21 Rule 1B, Order 22 Rule 22, Order 42 Rule 6, Order 50, Rule 6 Order 51 Rule 1 and 3 of the Civil Procedure Rules, section 3A, 79G, of the Civil Procedure Act, Article 159 92) (a) and (d) of the Constitution of Kenya, 2010 and all other enabling provisions of the law. It seeks orders;

That this application be certified urgent, service thereof be dispensed with and the same be heard ex-parte in the first instance

That this honourable court be pleased to grant a stay of execution of the judgment and/or decree issued by Honourable E.M MuiruPrincipal Magistrate on 10th November, 2022 pending the hearing and determination of this application.

That this honourable court be pleased to grant a stay of execution of the judgment and/or decree issued by Honourable E.M. Muiru Principal Magistrate on 10th November, 2022 pending the hearing and determination of the appeal in Makueni HCCA 63 of 2022

That this Honourable court be pleased to issue any other order and/or direction it deem fit to grant in the circumstances

That the costs of this application abide the outcome of the appeal.

The grounds as set out on its face include that;

  1. Judgment herein was entered on 10th November, 2022 and the 30 days within which an appeal is to be filed are almost lapsing.
  2. The applicant is aggrieved by the judgment on quantum delivered on 10th November, 2022 in Kilungu CMCC No. E223 of 2018 by Honourable E.M Muiru Principal Magistrate seeks to appeal against the said judgment.
  3. That the appellant/applicant is ready, able and willing to provide security for the entire decretal sum in the form of a bank guarantee to be issued by Family Bank Limited which is a reputable bank in Kenya.
  4. That it is in the interest of justice that the entire decretal sum be fully secured through a bank guarantee, without any partial payments/settlements being made, as the appellant’s appeal is primarily on trial court’s determination on the issue of liability which determination is vehemently disputed by the appellants as demonstrated on the memorandum of appeal/draft memorandum of appeal annexed to the supporting affidavit hereto.

These grounds are reiterated in the supporting affidavit sworn by Abdulrahman Abdulaziz sworn on on the same date.

The basis of the application is that the when the applicant was sued it in Kilungu PMCC 223 of 2018 joined a  third party to the suit against whon an interlocutory judgment was entered on 22nd October 2019 in the following terms: 

The third party herein Yasani Rangira having been duly served with a third party Notice and having failed to file memorandum of appearance and defence within the stipulated period and on the application by the counsel for the defendant I enter interlocutory judgment together with costs and interest at court rates. The remainder of the claim when the suit will be set down for assessment of general damages.

However the learned trial court in arriving at its determination on liability  rendered itself thus;

Notably, the defendant did not take out any third party proceedings against the owner of motor vehicle UAS. Therefore, taking in to account the evidence adduced the plaintiff herein was a passenger in motor vehicle KCF and was not in control of either of the motor vehicles. The prudent thing the defendant would have done was to commence third party proceedings if they contend that their driver was not to blame. In the absence of the third party proceedings and the plaintiff having been a passenger aboard motor vehicle KCF, the party to shoulder responsibility is none other but the defendant herein. The plaintiff further produced a copy of records that demonstrated that the defendant was the registered owner of the vehicle and is thus held vicariously liable.

The applicant’s appeal is grounded on the foregoing misdirection by the trial court and it is of the view that the appeal has a high chance of success.

I have considered the record and the rival submissions and I am of the view that the application is merited.

In the circumstances of the clear misdirection by the learned trial court and in the interests of justice,  I make the following orders:

1. that the application for stay pending appeal be and is hereby allowed

2. That the entire decretal sum be fully secured through a bank guarantee, in favour of the applicant made and filed within 30 days hereof.

3. that the costs of this application to abide the appeal

Orders accordingly

Delivered, signed and dated this 2nd May 2024


    DREAMLINE EXPRESS LIMITED VS IRENE AKINYI DREAMLINE EXPRESS LIMITED VS IRENE AKINYI