Case Metadata |
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| Case Number: | Civil Application NAI 233 of 1993 |
|---|---|
| Parties: | Mbothu & 8 others v Waitimu & 10 others |
| Date Delivered: | 10 Dec 1993 |
| Case Class: | Civil |
| Court: | Court of Appeal at Nairobi |
| Case Action: | Ruling |
| Judge(s): | Akilano Molade Akiwumi, Philip Kiptoo Tunoi, Richard Otieno Kwach |
| Citation: | Mbothu & 8 others v Waitimu & 10 others [1993] eKLR |
| Advocates: | Mr Nowrojee for the Applicants, Mr Baiya for the Respondents |
| Court Division: | Civil |
| Parties Profile: | Individual v Individual |
| County: | Nairobi |
| Advocates: | Mr Nowrojee for the Applicants, Mr Baiya for the Respondents |
| Case Summary: | Mbothu & 8 others v Waitimu & 10 others Court of Appeal, at Nairobi December 10, 1993 Kwach, Akiwumi &Tunoi JJ A Civil Application No NAI 233 of 1993 (Appeal from the Ruling of the High Court at Nairobi (Shields J) delivered on August 11, 1993) Damages – assessment of – court assessing quantum of damages in the absence of counsel for the defendants and after declining application for adjournment on behalf of defendants’ counsel - whether prejudice occasioned to the defendants. Civil Practice and Procedure – decree – application for execution of – judgment creditor causing issuance of decree without notifying the defendant – whether execution proper – order 20 rule 7 Civil Procedure Rules. The applicants sought a stay of execution under rule 5 (2) (b) of Court of Appeal Rules after the High Court dismissed an application seeking to set aside ex-parte judgment obtained against them by the respondents. The trial judge had declined to grant an application for adjournment made on behalf of the applicants’ counsel on the day the case came up for assessment of damages. Having obtained ex-parte judgment the respondents caused a decree to issue without notifying the applicants’ advocate. Held: 1. The fact that the applicants had been deprived of an opportunity to challenge the quantum of damages awarded against them was some evidence of prejudice. 2. The assessment undertaken in the absence of the applicants and the circumvention of the rules governing the preparation of decrees must have been intended to make it difficult, if not impossible for the applicants to do anything about the award. 3. The applicants had established that they had an arguable appeal which, if successful, would be rendered nugatory if a stay was refused. Application allowed. Cases No cases referred to. Statutes 1. Civil Procedure Rules (cap 21 Sub Leg) order XX rule 7; order XXIII rule 11 2. Court of Appeal Rules (cap 9 Sub Leg) rule 5(2)(b) Advocates Mr Nowrojee for the Applicants Mr Baiya for the Respondents |
| History Advocates: | Both Parties Represented |
| Case Outcome: | Application allowed |
| Disclaimer: | The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information |
IN THE COURT OF APPEAL
AT NAIROBI
(Coram: Kwach, Akiwumi &Tunoi JJ A)
CIVIL APPLICATION NO NAI 233 OF 1993
MBOTHU & 8 OTHERS………..….… APPLICANTS
VERSUS
WAITIMU & 10 OTHERS…...…….. RESPONDENTS
(Appeal from the Ruling of the High Court at Nairobi
(Shields J) delivered on August 11, 1993)
RULING
This is an application under rule 5(2) (b) of the Court of Appeal Rules for a stay of the order of Shields J made on 11th of August, 1993, by which he dismissed an application by the applicants to set aside an ex parte judgment obtained against them by the respondents on 1st February, 1993. By that judgment and decree, the applicants were ordered to pay the respondents damages in excess of Shs 1,680,000/- together with interest back-dated to 8th December, 1983.
On the day the suit came before the learned judge for assessment of damages, an application was made on behalf of the applicants for an adjournment on the ground that Mr Nowrojee who was acting for them in the matter was in Mombasa. The application was refused and counsel who held Mr Nowrojee’s brief for the purpose of the application for adjournment then left, taking no further part in the proceedings. Subsequently an application was made by the applicants to set aside that ex parte judgment and the learned judge dismissed it, giving rise to the present application.
Having obtained the ex parte judgment, the respondent’s advocates then caused a decree to be issued without any reference to the applicants’ advocates contrary to the mandatory provision of order 20 rule 7 of the Civil Procedure Rules governing the preparation of decrees. This omission has not been seriously denied and Mr Baiya, for the respondents, submitted that even if that was true, no prejudice has been caused to the applicants. In our view, the fact that the applicants have been deprived of an opportunity to challenge the quantum of damages awarded against them which in the event turned out to be colossal is some evidence of prejudice. The assessement was undertaken in their absence and the circumvention of the rules governing the preparation of decrees must have been intended to make it difficult, if not impossible, for the applicants to do anything about the award. This Court will not allow any party to flout the rules of procedure.
The second point taken by Mr Nowrojee was that the assessment was undertaken after two of the plaintiffs and one defendant had died without any application being made for the substitution. As death took place before the conclusion of the trial, order 23 r 11 cannot be of any assistance to the respondents.
All in all, we are satisfied that the applicants have an arguable appeal which, if successful, would be rendered nugatory if a stay is refused. Accordingly, we allow this application and stay the execution of the decree issued on 22nd March, 1993, and the decision of 11th August, 1993, until the hearing and final determination of the intended appeal or further order. Costs to be in the appeal.
Dated and Delivered at Nairobi this 10th day of December, 1993
R.O. KWACH
………………………….
JUDGE OF APPEAL
A.K. AKIWUMI
………………………….
JUDGE OF APPEAL
P.K.TUNOI
………………………….
JUDGE OF APPEAL
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