Skip to content
JudgmentHELLEN WANJIRU KIMANI VS HARRISON MICHIEKA BISEGI10 min read

HELLEN WANJIRU KIMANI VS HARRISON MICHIEKA BISEGI

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


  1. 1.   What     is before   me is the   notice of motion   dated 31/3/2023   brought     under order 42 rule   6(1) & (2)   of the Civil Procedure Rule and section 3A    of the Civil Procedure     Act.  It seeks orders
      1. Spent.
      2. That    the honourable    court be pleased to issue an order staying the execution of the ex-parte judgment delivered in Makueni CMCC No.  E170 of 2021    Harrison Bisengi   Michieka   Vs Hellen Wanjiru   Kimani   pending    inter parties hearing and determination of the application herein. 
      3. That the   honourable court be pleased    to stay the   execution of the ex-parte   judgment   and order/ruling delivered   Makueni CMCC NO.  E170 of 2021   Harrisson Bisengi   Michieka Vs Hellen Wanjiru Kimani on the 8th   June, 2022 and 29th March, 2023 respectively pending the hearing and determination   of the application. 
      4. That the honourable    court be pleased to stay the execution of the ex-parte judgment and order/ruling    delivered   Makueni   CMCC No.  E170 of   2021   and 29th March, 2023 respectively pending the hearing and determination of this appeal. 
      5. That the costs of this application   be provided for.
  2. It is    supported by the affidavit of Mary Ng’ang’a, Advocate   & legal officer of M/S Jubilee Alliance General   Insurance Co.  Limited who describes it as “Successor of   the Appellant” (I do not know what that means).  She also deposes    that she   has the authority of the “Applicant’s Board to swear the instant   application in support of the application.” My concern is that these depositions cannot relate to the Applicant   who is one Hellen Wanjiru   Kimani.  Be that    as it may the gist of the application is that Respondent filed Makena MCCC E170/21 seeking compensation following a road traffic accident involving motor vehicle   reg.  No. KBZ 139P on 5/1/2021. 
  3. The matter proceeded ex-parte and a judgment of Kshs.  10,336,398/= was entered   against   the applicant    on 8/6/2022.  (a copy of the decree is annexed)
  4. Thereafter    the Applicant filed   an application    seeking the setting aside of the ex-parte judgement.
  5. On 29/3/2023   the trial court refused that application. 
  6. Aggrieved the Applicant filed an appeal on following grounds;
  7. That   the learned   trial magistrate erred in law and in fact in dismissing the application dated 19th August, 2022 seeking to set aside the ex-parte judgement.
  8. That the learned trial magistrate erred in law and in fact in finding that the Applicant had raised a defence of contributory negligence and on the same breadth and in a contradictory finding ruled that the defence constrained mere denials. 
  9. That   the learned trial magistrate erred in law and in fact in failing to appreciate that the appellant only needed to demonstrate that there was a triable issue in the draft defence. 
  10. That   the learned trial magistrate erred in law and in fact in failing to appreciate that a triable issue need not succeed but that which raises a prima facie defence that ought to be adjudicated on trial.
  11. That the learned trial magistrate erred in law and in fact in delving into the arena and of the litigants by finding that there was no evidence tabled on the defence of contributory negligence in an application for setting aside the ex-parte judgment. 
  12. That the trial learned magistrate erred in law and in fact in failing to properly appreciate, consider and apply the principles of setting aside ex-parte judgement. 
  13. That   the learned trial magistrate     erred in law and in fact in failing to properly apply the discretionary   power by dismissing the application to set aside the exparte judgment   while at the same finding that there was a defence of contributory negligence raised. 

It is    proposed to ask this honourable   court.

  1. That    the ruling   of the honourable    trial court of 29th March, 2023   dismissing the application to set aside the ex-parte judgment in the suit be and is hereby set aside. 
  2. That the honourable   court upon reversing the order of the trial magistrate be pleased to allow the application dated 19th August, 2022.
  3. That the costs of the appeal be borne by the Respondent
  4. In opposing the application   the Respondent   points   out that the appeal    is not   against   the judgement of the subordinate court but against   the ruling    to set aside the judgement -  that there can be no stay of execution as there is no appeal   against the judgement. 9. That he is advised   by his advocate that the Ruling of the subordinate court amounted   to a negative order against which there could be no stay order and that a notice of preliminary   objection had been issued   to the effect that this court has no jurisdiction to stay execution of a negative order. 
  5. That   should   the court be inclined to grant the orders sought then the decretal sum be deposited   in a joint interest earning account as security.
  6. The advocates    agreed to proceed   by way of written   submissions on 31/7/2023.  12. The matter was mentioned   severally for the Applicant   to file   theirs – on 12/2/2024 counsel (Mr. Karanja) told the court   that   they had filed   submissions on 10/10/2023.  The Respondent’s counsel Mr.  Muthoki   told the court that they had never been served.  The court pointed out that the submissions were not on the court file.  Counsel   committed   to have them   on the court file by close of business that day but as at the time of writing   this ruling I did not find them on the file.
  7. The Respondent’s submission    was filed on 30/8/2023.
  8. For the   Respondent   it is   submitted   that the issues for determination were;
  9. Whether notice of preliminary objection is merited. 
  10. Whether the application for stay of execution is merited. 
  11. Whether   the conditions for stay of execution have been satisfactorily met.
  12. Whether this is a suitable case for court to exercise its inherent powers.
  13. Citing Mukisa Biscuit Manufacturing   Company Ltd   v West End Distributors Ltd [1969] and Panfied Investment   Limited (new Eldoret    Total Service Station Ltd) vs Sisibo Luxury Shuttle Ltd [2018] eKLR the respondent rely on the following definition of a preliminary objection

“A preliminary objection is in the nature of what used to be demurrer.  It raises a pure point of law which is argued on the assumption that all the facts pleased by the other side are correct.  It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.

” “a preliminary    objection    may be raised     at any time    before judgment…”

  1. It is argued that the preliminary   objection     will dispose   of this matter.
  2. It    is argued   that the ruling of the trial court merely dismissed the Applicant’s application seeking    to set aside the ex-parte judgement. The respondent relied on   Western College of Arts   and Applied Sciences V Oranga & Others (1976 -80) I KLR, Milca Jeruto vs Fina Bank Ltd [2013] eKLR, Executive Estates Limited vs Kenya Posts & Anor [2005 E. A 53, Co-operative   Bank   of Kenya Limited v Banking   Insurance   & Finance Union (Kenya) [2015] eKLR and urged the court to find that the ruling of the subordinate    court gave a negative   order and therefore the order of stay sought would not serve any purpose. That   in re Estate of Yusuf Kipkorir Chepkeitany (deceased [2021] eKLR an application for stay of execution was dismissed with costs as the order in question was a negative order that was not capable of execution. 
  3. However, the applicant argues that should the court be swayed to find otherwise, it is their submission On the application dated 31/3/2023 on whether stay of execution was merited it is submitted    that the court has the dissection to issue the but the discretion is fettered by the conditions   set under order 42 rule 6 Civil   Procedure Rules. On this it is relied upon the following cases Jenny Luesby vs Standard   Group   Ltd [ 2014] eKLR cited in Medula Academy v Jacklyne Atieno Otieno & Another [2018] eKLR -  and Magnate Ventures v Simon Mutua Muatha & another [2018] eKLR to argue that the three conditionalities   of substantial    loss, time and security are not severable.
  4. That the Applicant   implicated   herself and has not demonstrated any state of affairs that will irreparably affect/negate her very existential core to prove substantial   loss -  see James Wangalwa & Another v Agnes Naliaka   Cheseto   Bam Misc Appl 42/11. -  that the   application was brought in good time That according   to Gian Franco Manenthi & Anor V Africa Merchant Assurance Company Ltd [2019] eKLR

“The Applicant must show and meet the condition of payment of security for the due performance of the decree … deposit of security for due performance of the decree is not a matter of willingness by the Applicant   but for the court to determine.”

  1. It is submitted   that the Applicant   has not offered any security   and   therefore does not deserve exercise of the discretion of this court. 
  2. On the exercise of inherent powers – the Respondent relied on Kenya Power and Lighting Company Limited v Benzene Holdings Limited t/a Wyco Paints [2016] eKLR
  3. It is submitted   that there is no appeal against the exparte   judgement, this court cannot proceed to grant stay; that the Applicant seeks stay of execution pending appeal of the ex parte judgment delivered in favour of the Respondent. However, on the face of the memorandum of appeal filed herein, it is clear that the appeal has been preferred against the ruling of the trial court delivered on 29/3/20213 dismissing the Applicants’ application for stay of execution and setting aside on the ex parte judgment. Thus, it is submitted that the court cannot stay execution of the exparte judgment where no appeal has been preferred against it.

Analysis & Determination.

  1. The issue for determination are whether the preliminary objection has merit -  and if not whether the application for stay of execution is merited.
  2. On the preliminary objection -  it is   correct   that the application   before the trial court was   seeking    the setting aside of the exparte judgement.  It is this application that was dismissed.  According to the to the memorandum of appeal    that is the application the Applicant is appealing against.  It is correct that the dismissal of that application did not result in positive order that would   to warrant stay of execution and following the cited   authorities, there was nothing    to stay. 
  3. A perusal of the memorandum of appeal shows clearly that the appeal is against the ruling delivered on 29/3/2023, the grounds are with respect to the said ruling, and the prayers sought with respect to the appeal are with respect to the said ruling. However, the order sought out of the Appeal Are That    the ruling   of the honourable    trial court of 29th March, 2023   dismissing the application to set aside the ex-parte judgment in the suit be and is hereby set aside. That the honourable   court upon reversing the order of the trial magistrate be pleased to allow the application dated 19th August, 2022
  4. The application dated 19/8/2022 seeks not only the setting aside of the ex parte Judgment, but also seeks that the respective parties be afforded the chance to advance their respective cases; that is to say that the ex parte judgement be set aside and the parties be allowed to proceed to present their respective cases in a full hearing.
  5. It is    evident   from the pleadings from both sides had not been for the exparte judgement this application, this appeal, and the application below – would not have been    filed. 
  6. Hence, while it is correct that the appeal is against   the ruling of the subordinate court – one of the prayers sought   in the appeal   - is to allow the application    in CMCC E170/2022 whose prayer were;
  7. That honourable   court be pleased to issue an order for stay of execution of the exparte judgment /decree dated/delivered   on 8/6/2022 pending the inter-partes hearing and determination of this application.
  8. That this honourable court be pleased to set aside the interlocutory judgement, exparte judgment /degree   herein dated 8/6/2022   and consequent   proceedings and readmit the matter for hearing on merits with the respective parties being afforded a chance to advance their cases
  9. The honourable     court be pleased to grant the Defendant /Applicant leave to file her defence out of time.

24.  It is from those facts that I form the view that the application for stay is not for fetched it is with standing -   because allowing or refusing the application in the subordinate court   would have consequences with regard the ex parte judgement. Hence   it is my view that the application for stay of execution of the ex-parte judgement is merited.  It was brought in time; The sum involved is substantial   and any in any event in the replying affidavit    the Respondent offers a middle   ground: the deposit of the decretal sum in a joint interest earning account in the name of both advocates; The security would be served by the above proposal if granted.

25. In the circumstances the preliminary objection would have been sustainable had it been that the matter was only about the ruling in the subordinate court.   However, there is more than just the negative order. The more is about the ex parte judgement.

26. The application for stay of execution pending the appeal is allowed on the condition:

  1. That the awarded sum   be deposited   in a joint interest earning account in the names of the two advocates within 45 days herein: in default the order of stay will lapse automatically   and the Respondent will be at liberty to execute. 
  2. The record of appeal be filed and served within 30 days, herein.
  3. Mention in 45 days, before Deputy Registrar to confirm compliance   with respect to the filing of the Record of Appeal.
  4. The Respondent will have costs of the application either way.
  5. Parties are at liberty to dispense   with the issues herein   vide Court Annexed Mediation or any other form of ADR see Article 159 (2) (c) of the Constitution.
  6. Orders accordingly

Dated and signed on 12th day of April, 2024.

Delivered virtually  this 15th day of April, 2024 due to system downtime on 12/4/2024.


    HELLEN WANJIRU KIMANI VS HARRISON MICHIEKA BISEGI HELLEN WANJIRU KIMANI VS HARRISON MICHIEKA BISEGI