Winnie Chepkirui v Emmanuel Nzioki & 1 other

iv. It is in the interest of justice and judicial economy to strike out this Appeal. 4. It is supported by the affidavit of Moses Barasa the Legal Officer at Madison General Insurance (K) Ltd - the Insurer for the 2nd Respondent - the registered owner of motor vehicle reg. KCC 533M. 5. He depones that inter alia; a. That I am a Legal Officer in the employ of M/s Madison General Insurance Kenya Limited ['Madison') the insurers of the 2nd Respondent owner of the suit Motor Vehicle Reg. No. KCC 533M. 1. That I am conversant with the matters relating to this Affidavit and I have the authority of the Respondents' and of Madison to swear this Affidavit as I do hereby. 2. That on 16/07/2024, the lower Court entered Judgment in favour of the Appellant in MAKUENI CMCC NO. E153 OF 2022 Winnie Chepkirui -vs- Emmanuel Nzioki & Anthony Mwangi Ngundo. A copy of the Judgement is at pgs. 1-6 of the Exhibit. 3. That I am advised by Madison's Advocates on record, which advise I verily believe to be true that on 18.07.2024 they sent a letter to the appellant requesting for the tabulation of costs. A copy of the Email Correspondence is attached at pg.7 4. That I am further aware through Madison's Advocates on record that upon request, there was a response on tabulation of costs dated 06/08/2024, which we relied on in settling the full payment. A copy of the tabulation by the Appellant dated 06/08/2024 and cheques dated 13/08/2024 and 1/10/2024 together with their respective forwarding letters, dated 17/09/2024 & 16/10/2024 duly acknowledged and received are attached at pgs.8-15 5. That the Appellant thereafter notified Madison's Advocate of the filing/existence of this Appeal on 27/03/2025 as per the email attached at pgs. 16-17, long after having settled the claim without any indication of protests. 6. He urges the court to dismiss the appeal on the grounds set out herein above. 7. The application is opposed vide the replying affidavit of Faith Mutio Mutuku she depones that; 1. That the application is misconceived, without merit, and an abuse of the court process as it seeks to prematurely curtail the Appellant's right of appeal without legal or factual justification. 2. That the mere fact that the judgment sum was settled does not render the appeal nugatory or overtaken by events, as the appeal challenges the quantum of general damages awarded by the trial. 3. That the payment of the decretal sum cannot be interpreted as a waiver or abandonment of the right to appeal. 4. That the Appellant never compromised the appeal at any point. 5. That the Appellant's appeal specifically contends that the general damages awarded by the trial court were manifestly low and not commensurate with the severity of the injuries suffered, which included fracture of the radius, double fractures of the right femur (communited fracture) and right fibula fracture together with multiple soft tissue injuries. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4258/eng@2026-02-13 2

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6. That the Appellant's suffered the following injuries; fracture of the radius. Fractures of the right femur (communited fracture) and right fibula fracture together multiple soft tissue injuries and had an incapacity of 14%, she was awarded damages of Kshs.700,000/- which was too low in the circumstance. 7. That the appeal raises substantive and arguable issues on the quantum of damage warrant determination on merit and should not be dismissed on procedural or technical grounds. 8. That striking out or dismissing the appeal at this stage would be prejudicial the Appellant and contrary to the interests of justice, as it would deny the Appellant opportunity to be heard on a valid grievance. 8. Thereafter parties filed written submissions. 9. I have considered the submissions by the parties. 10. For the respondent the submission is mainly that the payment of the decretal sum itself pending appeal does not extinguish/compromise the appellant’s right of appeal. The applicant relies on several authorities to support this proposition: 11. 1. Ng’ang’a v Mwangi & Another(Civil Appeal E013 of 2022)[2023] KEHC 26221 (KLR) (27 November, 2023) (Judgment) 2. Kariuki v Emo (Suing as the Mother and Next Friend of John Nyaribo) Miscellaneous Civil Application 390 of 2023) [2024] KEHC 6883(KLR) (5 June 2024) (Ruling) 3. Kimuta v Kamau & Another (Civil appeal E270 of 2022) [2024] KEHC5794(KLR) CIV) (13May 2024) (Ruling) 4. Richard Ncharpi Leiyagu V IEBC & 2 Other [2013]EKLR For the applicants it is submitted that the appellant having received the full decretal sum “without any caveat alerts, the appellant gave the impression, which the respondents acted upon and believed that the matter was closed.” It is submitted that on that basis the appellant is estopped by section 120 of the Evidence Act Cap 80 Laws of Kenya and that the appellant irrevocably waived the right to challenge the underlying judgement - the respondent cites the following cases to support this position. 1. Flora M. Wasike Vs Destimo Wamboko (1988) eKLR 2. John Mburu Vs Consolidated Bank of Kenya 2018 KECA 796(KLR) 12. I have considered the application – I have looked at the memorandum of appeal vis a vis the application to dismiss the appeal 13. The applicant relies on John Mburu v Consolidated Bank of Kenya [2018] KECA 796 (KLR) where the court dealt with the issue of estoppel. The court stated: 33. In view of the binding nature of the settlement agreement, the appellant was obligated to pay that which he paid under the deed of settlement. Unjust enrichment would not arise as the appellant consented to pay the said amount and voluntarily executed the agreement to pay the stated sum. All said and done, the negotiations between the parties were not vitiated by duress as claimed by the appellant and we so find. Which leads us to the last issue. 34. Should the appellant be estopped from reopening the matter? Estoppel is not easy to define in legal terminology. It is said to be a principle of justice and equity. In the case of 748 Air Services https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4258/eng@2026-02-13 3

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Limited vs Theuri Munyi (2017) eKLR, this Court explored the history of the doctrine with Lord Denning in the case of McIlkenny vs Chief Constable of West Midlands, [1980] All ER 227, where he stated: ...We have so many rooms that we are apt to get confused between them. Estoppel per rem judicatum, issue estoppel, estoppel by deed, estoppel by representation, estoppel by conduct, estoppel by acquiescence, estoppel by election or waiver, estoppel by negligence, promissory estoppel, proprietary estoppel, and goodness knows what else. These several rooms have this much in common: they are all under the same roof. Someone is stopped from saying something or other, or doing something or other, or contesting something or other. But each room is used differently from the others. If you go into one room, you will find a notice saying 'estoppel is only a rule of evidence. If you go into another room, you will find a different notice: 'estoppel can give rise to a cause of action'. Each room has its own separate notice. It is a mistake to suppose that what you find in one room, you will find in the others." 35. The Court in that case considered estoppel by conduct and estoppel by election or waiver. The latter is an intentional relinquishment or abandonment of a known right or privilege. A person who is entitled to rely on a stipulation existing for his benefit in a contract or of a statutory provision, may waive it, and allow the contract or transaction to proceed as though the stipulation or provision did not exist. In the case of Sita Steel Rolling Mills Ltd vs Jubilee Insurance Company Ltd [2007] eKLR, Maraga, J. (now Chief Justice) stated: A waiver may arise where a person has pursued such a course of conduct as to evince an intention to waive his right or where his conduct is inconsistent with any other intention than to waive it. It may be inferred from conduct or acts putting one off one's guard and leading one to believe that the other has waived his right.” 14. In this case other than receiving the decretal sum there is no evidence that the appellant respondent had conducted herself in a manner to demonstrate that she had waived her right of appeal. 15. It is evident from the foregoing authority that it is distinguishable in that in that case there was a settlement agreement between the parties, while in this case the decretal sum paid emanated from the judgment of the trial court. I found that the appellant would not be estopped from pursuing their right to appeal. 16. s. 65 of the CPA provides for appeal from other courts (1) Except where otherwise expressly provided by this Act, and subject to such provision as to the furnishing of security as may be prescribed, an appeal shall lie to the High Court— (a) …. b. from any original decree or part of a decree of a subordinate court, on a question of law or fact; c. from a decree or part of a decree of a Kadhi’s Court, and on such an appeal the Chief Kadhi or two other Kadhis shall sit as assessor or assessors. (2) ………… (3) ………… https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4258/eng@2026-02-13 4

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17. It is my view that the right of appeal cannot be extinguished by the payment of the decretal sum. I am supported in my view by the position taken in Ng’ang’a v Mwangi & another [2023] KEHC 26221 (KLR) where the court cited the following cases;Machakos District Co- Operative Union Limited Vs Philip Nzuki Kiilu [1997] KECA 192 (KLR) Mrs. Mwangangi also argued that there is no point in appealing as the decretal sum has been paid. With respect, payment of decretal sum does not take away a right of appeal. 18. Bash Hauliers Limited v Peter Mulwa Ngulu [2020] eKLR where the court stated that: 27. It was again contended that it was an abuse of the court process for the Respondent to proceed with the appeal after the decretal sum had been settled. A not too dissimilar issue arose before the Court of Appeal in Machakos District Co- Operative Ltd. v Nzuki Kiilu Civil Application No Nai 17 of 1997 where it was argued that since the decretal sum had been paid, the right of appeal had been lost. The Court (Shah, JA) however had no hesitation in holding that the fact that the decretal sum has been paid does not deprive a party of the right of appeal. Waki, JA, on his part in Seventh Day Adventist Church East Africa Ltd. & another v M/S Masosa Construction Company Civil Application No Nai. 349 of 2005 held that: Where the Respondent has already recovered all the decretal sum and costs attendant to the litigation, the right of appeal being a strong right which is rivalled only to the right to enjoy the fruits of judgement, no prejudice would be caused to the respondent who has enjoyed his rights in full if an opportunity is given to the applicants to enjoy theirs too, even if it is on a matter of principle.” 19. Ismael Lonkishu Kobei v David Kariuki Gichangi & another [2017] eKLR where the applicant was seeking for an order to dismiss the appeal before the court on the grounds that the decretal sum was paid in full. However, the court in dismissing the application held that: Section 65 (1) (b) confers a right of appeal on an aggrieved party to challenge a judgement of a magisterial court. The appeal of the appellant was admitted into hearing by this court on 28/6/2017 pursuant to section 79 of the Civil Procedure Act. The effect of such an admission is that the appeal is not frivolous. It is also not an abuse of the court process. A statutory right of appeal guarantees a fair trial. If the trial court committed errors of law or fact, the appeal court is at liberty to review and correct those errors. The right of appeal which is conferred upon the appellant can only be taken away by another statute. 6. Furthermore, the invocation of section 3A of Civil Procedure Act which saves the inherent powers of the court cannot defeat the express provisions of section 65 (1) (b) of the Civil Procedure Act. In the circumstances, I find that the provisions of section 3A cannot defeat the provisions of section 65 (1) (b) of Civil Procedure Act. Additionally, the provisions of section 1A and 1B of the Civil Procedure Act are not applicable to the instant appeal. Those provisions are in relation to the just determination and efficient disposal of court cases in terms of section 1B of the Civil Procedure Act whose main objective is to require the courts to facilitate the just, expeditious, proportional and affordable resolution of civil dispute. It is therefore clear that those provisions are of no assistance to the respondents. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4258/eng@2026-02-13 5

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7. The equitable doctrine of “clean hands” and the rule that one cannot approbate and reprobate at the same time cannot override the appellant’s statutory right of appeal.” 20. From the foregoing it is my view that the application to dismiss the appeal on the ground that the appellant has received the decretal sum cannot stand , as it is an exercise of a statutory right. 21. In the circumstances the application is not merited and it is declined. Costs to abide the appeal. DATED SIGNED AND DELIVERED VIRTUALLY THIS 13TH FEBRUARY 2026. MUMBUA T MATHEKA JUDGE CA Mwiwa/Daniel Mr. Maweu for applicant Ms. Muranga for respondent LADY JUSTICE MATHEKA, TERESIA MUMBUA THE JUDICIARY OF KENYA. MAKUENI HIGH COURT HIGH COURT DIV DATE: 2026-02-14 15:28:59 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4258/eng@2026-02-13 6

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