BUS TRACK LTD & another V MUTHIANI KIILU [2012] KEHC 4532 (KLR)

Editorial Summary

1. Civil Appeal

2. Civil Practice and procedure

3. Subject of subordinate court case

DECLARATORY SUIT

3. 1           Running down cause

3. 2           Motor vehicle accident

3. 3           Suit filed at the PM’s court

Kikuyu 9/2008

seeking orders for original defendant

to settle award.

3. 4           Appeal on the original first suit

filed PMCC 104/04 as CA 104/09.

3. 5           Declaratory suit has hearing to

the appeal 104/09

4. Respondent did not participate.

5. Held:

a)            There be a stay of proceedings

pending interparte hearing of

application.

6. Case Law:

7. Advocates:

i)      M Mwangi instructed by Mwangi Kengara & Co Advocates for

applicant/respondent

ii)   L Kimani instructed by Kimani Michuki & Co Advocates for

2nd respondent/2nd appellant

iii) M/s Miller & Co Advocates for 1st respondent/1st appellant absent

REPUBLIC OF KENYA

IN THE HIGH COURT

AT NAIROBI

MILIMANI LAW COURTS

Civil Appeal 104 of 2009

BUS TRACK LTD

KENYA BUS SERVICES LTD ………..APPELLANT/ORIGINAL DEFENDANTS

VERSUS

MUTHIANI KIILU ……………………….RESPONDENT/ORIGINAL PLAINTIFF

(Being an appeal from the Judgment of Hon. M. W. Muigai (Senior Principal Magistrate) in Case No 104 of 2001 dated 4th May 2007 at Kikuyu Courts)

R U L I N G

Application for stay of proceedings

9th March 2012

I.BACKGROUND

1. A road traffic accident occurred. A suit was filed in the subordinate court at Kikuyu being PMCC 104/04.

2. An award was made against the appellant herein. This appeal file concerns the appeal against that decision being CA 104/09.

3. The respondent in the meantime filed a declaratory suit. This case is still pending.

4. The applicant prays there be stay of execution pending the hearing of the appeal before court.

IIFINDINGS

5. It was noted that the respondent did not participate in this matter. There will nonetheless be status quo/stay of proceedings of the subsequent declaratory suit No. 104/04 PMCC pending the hearing and determination of the application 9th March 2012 interparte.

6. The respondents be served with the application and the orders of this court.

7. There will be costs in the application.

DATED THIS 23RD DAY OF MARCH 2012 AT NAIROBI

M.A. ANG’AWA

JUDGE

Advocates:

i)      M Mwangi instructed by Mwangi Kengara & Co Advocates for

applicant/respondent

ii)   L Kimani instructed by Kimani Michuki & Co Advocates for

2nd respondent/2nd appellant

iii) M/s Miller & Co Advocates for 1st respondent/1st appellant absent