Case ID:169769

Safaricom Limited v Jacob Ouma Nyina & Ruth M. Opondo & 2 others [2021] eKLR

Case Metadata

Case Number:

Civil Appeal 21 of 2020

Parties:

Safaricom Limited v Jacob Ouma Nyina & Ruth M. Opondo (Suing as legal representative of the estate of Geoffrey Ochieng Ouma (Deceased), Justin Migiro Oira & Bhogals Auto World Limited

Date Delivered:

28 Jan 2021

Case Class:

Civil

Court:

High Court at Nakuru

Case Action:

Ruling

Judge(s):

Rachel Biomondo Ngetich

Citation:

Safaricom Limited v Jacob Ouma Nyina & Ruth M. Opondo & 2 others [2021] eKLR

Advocates:

Mr. Ngugi counsel for the 1st Respondent

Mr. Maina counsel for the Appellant

Ms. Chelule counsel for the 3rd Respondent

Court Division:

Civil

County:

Nakuru

Advocates:

Mr. Ngugi counsel for the 1st Respondent

Mr. Maina counsel for the Appellant

Ms. Chelule counsel for the 3rd Respondent

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

REPUBLIC OF KENYA

IN THE HIGH OF KENYA

AT NAKURU

HCA NO.21 OF 2020

SAFARICOM LIMITED.........................................................................PLAINTIFF

VERSUS

JACOB OUMA NYINA & RUTH M. OPONDO(Suing as legal

representative

of the estate of GEOFFREY

OCHIENG OUMA (deceased)..1

ST

RESPONDENT

JUSTIN MIGIRO OIRA...........................................................2

ND

RESPONDENT

BHOGALS AUTO WORLD LIMITED..................................3

RD

RESPONDENT

RULING

1. This is a ruling on application dated 9

th

March 2020 to stay execution of judgment delivered on 17

th

January 2020 and all consequential orders pending hearing and determination of the appeal lodged by the appellant/applicant.

2. The respondents are not opposed to the application save for release of half the decretal amount to the 1

st

respondent and payment of costs of the lower court. The applicant is not agreeable to an order releasing half the decretal amount to the 1

st

respondent but instead proposes to have half the decretal amount deposited in a joint interest earning account.

3. Counsel for the 1

st

respondent argued that the 1

st

respondent is a person of means; that he is a pastor earning monthly salary of kshs 70,000. He further argues that the appeal is only on quantum and this matter has been pending since 2012.

ANALYSIS AND DETERMINATION

4. I have perused the copy of memorandum of appeal attached to this application and note that contrary to submissions by counsel for the respondent, the applicant is appealing on both liability and quantum. The applicant has appealed against being held vicariously liable for acts of the 2

nd

respondent.

5. I note that judgment in this matter was delivered on 17

th

January 2020 and appeal is dated 10

th

February 2020 and filed on 10

th

March 2020. The appeal was filed without delay. In respect to whether the applicant is likely to suffer substantial loss, the 1

st

respondent has indicated that he is a pastor earning kshs 70,000. What I see attached to his affidavit is ordination certificate and KRA registration of the church but there is no financial statement to show his earnings. It is not therefore certain that he would be able to refund the applicant without difficulty in the event that the appeal succeed.

6. In view of the fact that the applicant is challenging liability arguing that the 1

st

defendant was an employee of the 3

rd

defendant and applicant should not have been held vicariously liable, it would be safe to have the decretal amount deposited in a joint interest earning account rather than having it released to the 1

st

respondent.

7. FINAL ORDERS

1. Stay of execution do issue pending appeal on condition that half the decretal amount is deposited in a joint interest earning account in the names of counsel for the applicant and the 1

st

respondent.

2. Deposit to be done within 30 days from the date of this ruling.

3. Failure to comply with 1 & 2 above, execution process may go on.

Ruling dated, signed and delivered via zoom at Nakuru This 28

th

day of January, 2021

......................................

RACHEL NGETICH

JUDGE

In the presence of

:

Jenifer - Court Assistant

Mr. Ngugi counsel for the 1

st

Respondent

Mr. Maina counsel for the Appellant

Ms. Chelule counsel for the 3

rd

Respondent