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Court of AppealPartially AllowedCivil Application No. NAI. 228 of 1998 (89/98 UR)

DAVID KINYANJUI & 2 OTHERS vs MESHACK OMARI MONYORI [1998] KECA 104 (KLR)

Court of Appeal
23 October 1998
1,318 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled you cannot execute a judgment against someone who was never a party to the case, and unproven damages claims can be stayed pending appeal.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Kwach, Shah and Owuor JJ.A) on a rule 5(2)(b) application for stay of execution of a High Court judgment (Mbogholi-Msagha J, H.C.C.C. No. 5155 of 1992) awarding the respondent Shs.1,608,036.00 with costs and interest, together with an order of 26th June 1998 granting leave to execute before taxation. The court found that the superior court had, surprisingly, granted leave to execute the decree against United Insurance Company Limited although the insurer was never a party to the suit; any earlier surety bond had lapsed when a prior appeal succeeded and the decree was set aside. Holding that a non-party cannot be made liable on a decree without being joined and heard, and that in material damage claims there is no statutory route against the tortfeasor's insurer under Cap 405, the court set aside the order against the insurer ex-debito justitiae as a nullity. On stay, the court found an arguable appeal on the loss-of-user award of Shs.1,444,000/=, which it considered exaggerated and unproved given the strict proof required for special damages, and found the appeal would be nugatory given the respondent's apparent inability to refund. It ordered payment of the undisputed Shs.316,200/= within ten days, stayed execution of the balance, directed investigations into the altered decree figure and the execution of an unsealed decree, and made costs of the application costs in the intended appeal. The court also censured counsel for unpreparedness.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the order permitting execution of the decree against United Insurance Company Limited, a non-party, was valid
  2. 2.Whether the applicants had an arguable appeal
  3. 3.Whether the intended appeal would be rendered nugatory if stay were not granted
  4. 4.What conditions, if any, should attach to the stay of execution

Key legal issues

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01

Execution against a non-party insurer

Holding

The order allowing execution against United Insurance Company Limited, which was never a party to the suit, was a nullity and was set aside ex-debito justitiae notwithstanding that the application was brought under rule 5(2)(b).

Reasoning

The insurer was never joined as a party; its earlier provision of a bond or surety pending a previous appeal lapsed when that appeal succeeded and the decree was set aside. The court held that no person not party to a suit can be made liable on its decree without being joined and heard, and that in material damage claims there is no statutory right to proceed against the tortfeasor's insurer, Cap 405 confining such suits to injury or death claims.

p. 1
02

Proof of special damages for loss of user

Holding

The award of Shs.1,444,000/= for loss of user was arguable as excessive and unproved, grounding the intended appeal.

Reasoning

Repairs cost only Shs.152,736/= yet loss of user was awarded for about ten months. The respondent's claimed daily net income of Shs.4,800/= would have enabled him to fund repairs within days, undermining the judge's basis. The hire contract with Apple Office Hygienic Services was produced by a mere witness to the agreement, with no evidence from the hirer, and net earnings after deductions were a matter of conjecture. Special damages must be strictly proved.

p. 2
03

Nugatory value of the intended appeal

Holding

The appeal would be rendered nugatory if the respondent, who could not raise Shs.150,000/= for nearly eight months, were paid and later required to refund Shs.1,444,000/= plus interest.

Reasoning

The court reasoned that a respondent unable to fund modest repairs over eight months would be quite unable to refund the substantial loss-of-user award with interest if the appeal succeeded, justifying a stay of the balance of the decree while requiring payment of the undisputed portion.

p. 2
04

Irregularities in the sealed decree and execution of an unsealed decree

Holding

The court noted with concern that the decree figure inexplicably rose from Shs.2,701,500 to Shs.4,649,980.50 and that an unsealed decree appears to have been executed, and directed investigations.

Reasoning

Leave to execute before taxation was granted on 26th June 1998, but the decree proper under Order 20 was not sealed until late September 1998, raising the question how an unsealed decree could have been executed. The unexplained amendment of the sealed decree figure warranted a direction to the Principal Deputy Registrar to investigate.

p. 2

Legal principles established

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  • A person who is not a party to a suit cannot be made liable to satisfy a decree in that suit unless brought into the suit and given an opportunity to be heard.
  • An order of execution against a non-party is a nullity which an appellate court may set aside ex-debito justitiae even on an application otherwise confined to rule 5(2)(b).
  • Special damages must be strictly proved and cannot be a matter of conjecture or general assessment.
  • In a material damage claim, the injured party cannot proceed directly against the tortfeasor's insurer; the Insurance (Motor Vehicles Third Party Risks) Act, Cap 405 gives that right only for claims of physical injuries or death.
  • Once a decree is set aside, a surety bond given for security pending appeal becomes a dead letter.

Court orders

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  1. 1.The order granting leave to execute the decree against United Insurance Company Limited is set aside ex-debito justitiae as a nullity and an illegality
  2. 2.The Principal Deputy Registrar of the superior court (Mr. Njai) to carry out investigations into how the sealed decree was amended from Shs.2,701,500 to Shs.4,649,980.50
  3. 3.The applicants to pay the respondents Shs.316,200/= (Shs.291,200/= being the sum of Shs.164,036/= special damages plus interest, and Shs.25,000/= costs) within 10 days failing which execution in that respect may issue
  4. 4.Execution of the balance of the decretal sum is stayed pending the hearing and determination of the intended appeal
  5. 5.Costs of the application to be costs in the intended appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court
H.C.C.C. No. 5155 of 1992
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution pending intended appeal)

Relief refused

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Total stay of execution of the entire decretal sum

The court ordered payment of the undisputed special damages of Shs.164,036/= plus interest and costs within 10 days, staying only the balance of the decree

p. 2

Costs

The costs of this application will be costs in the intended appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is trite law that anyone who is not a party to the suit cannot be made liable to meet any decree in the suit unless he is brought into the suit and given an opportunity to state his case or defend his position.
p. 1Execution against non-parties
The order to execute the decree against the insurer is a nullity and an illegality and although the application before us is one under rule 5(2)(b) of the Rules of this court we set aside that order ex-debitojustitiae.
p. 2Nullity of orders against non-parties; ex-debito justitiae jurisdiction
It has been stated by this court time and again that special damages must be strictly proved. These can never be a matter of conjecture or general assessment by the superior court or any other court.
p. 2Standard of proof of special damages
Once the decree is set aside, the surety bond such as it may have been, becomes a dead letter.
p. 1Effect of setting aside a decree on security pending appeal
The execution of the balance of the decretal sum is hereby stayed and these are our orders. The costs of this application will be costs in the intended appeal.
p. 2Final orders and costs

Issues in the judgment

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minor

The judgment records two different figures for the first decree issued by the superior court without reconciling them: it opens with a judgment entered against the applicants of Shs.1,608,036.00 but later refers to a first decree of Shs.2,701,500 which was 'upped' to Shs.4,649,980.50.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "DAVID KINYANJUI & 2 OTHERS vs MESHACK OMARI MONYORI [1998] KECA 104 (KLR)", Case Analysis (1998). Civil Application No. NAI. 228 of 1998 (89/98 UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/104/eng@1998-10-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.