1. Before me is the Notice of Motion dated 8/3/2024 brought under section 3A, 79G and 95 of the Civil Procedure Act (Cap 21), Order 22 Rule 22, Order 42 Rule 4, 6 and 7, Order 50 Rule 6 and Order 51 Rules 1 and 3 of the Civil procedure Rules, 2010 and all other enabling provisions of the law.
2. The applicant seeks orders:
1) Spent
2) Spent
3) That this Honourable court be pleased to order a stay of execution of the judgment delivered by the trial court on 31st January 2024 pending the hearing and determination of the intended appeal.
4) Spent
5) That the appellant/applicant be allowed to furnish the court with bank guarantee as security pending the hearing and determination of the intended appeal and the instant application.
6) That the costs of this application abide the outcome of the appeal
3. The grounds are inter alia, that:
a) That judgment herein was delivered on 31st January 2024 and the respondent was held 90% liable for the accident and awarded Kshs. 720,000/=, special damages of Kshs. 8,070/= plus costs and interests of the suit for the injuries suffered which award is exorbitantly high based on the injuries sustained.
b) That appellant/applicant being aggrieved and dissatisfied with the said judgment particularly quantum and liability have preferred an appeal.
c) That the lower court magistrate did not consider the defendant’s evidence on quantum and similar cited authorities with similar injuries.
d) That the appellant/applicant appeal has high chances of success.
e) That the application has been presented without inordinate delay.
f) That the respondent is a person of unknown means hence applicant/appellant is apprehensive that if the decretal sum is paid out, the appeal will be rendered an academic exercise.
g) That the applicant has a strong arguable appeal which has high chances of success.
h) That the application is made in good faith and the respondent will not suffer any prejudice or any damage that cannot be compensated by way of costs if this application is allowed.
i) That unless stay of execution is granted the applicant’s application for stay pending hearing and determination of the intended appeal will be rendered nugatory and the applicant/appellant will suffer irreparable loss and damage.
j) That the appellant/applicant are ready, willing and able to furnish such reasonable security in the form of a bank guarantee from the family bank for the entire decretal amount pending hearing and determination of this application and the intended appeal.
4. It is supported by the affidavit of Charles Mutune Kitenge.
5. I have checked the CTS and I did not find any response to the application.
6. The appellant has filed written submissions. I have not seen any by the respondent on the file or on CTS.
7. The appellant contends in the Memorandum of Appeal that:-
1) That the learned trial magistrate erred in law and fact in finding the defendants/appellants 90% liable for the accident.
2) That the learned trial magistrate erred in fact and in law in finding that the respondent was entitled to general damages of Kshs.720,000/=, special damages of Kshs.8.070/= plus costs and interests of the suit for the injuries suffered which award is exorbitantly high based on the injuries sustained.
3) That the learned trial magistrate erred and misdirected himself as to the exact nature of the respondent’s injuries and therefore erred in law in her assessment of damages specifically quantum awardable to the respondent which was manifestly excessive.
4) That the learned trial magistrate grossly misdirected himself in treating the evidence presented before him on quantum and liability and consequently coming to a wrong conclusion on the same;
5) That the learned trial magistrate erred in awarding a sum in respect to general damages which was inordinately high in the circumstance and was excessive in the circumstances occasioning miscarriage of justice; and
6) That the learned trial magistrate failed to adequately evaluate the evidence provided both on quantum and liability thereby arrived at a decision unsustainable in law.
And seeks:
a) That the whole judgment of the Hon. Geno L. Okwengo, Senior delivered on 31st January, 2024 be set aside the same be assessed afresh.
b) That this appeal be allowed.
c) That the costs of this appeal and that of the trial court be awarded to the appellant.
d) That such further orders may be made by this honourable court may deem fit to grant.
8. I have considered the application, the Memorandum of Appeal, the submissions by the applicant and the lower court judgment, and the only issue is for determination is whether the application has any merit.
9. From the foregoing, the application is generally unopposed however, Order 42 Rule 6 provides the court with the applicable principles in applications such as this one. That the application was filed timeously, that the applicant will suffer substantial loss if the order is not granted, and that there is security for the performance of the decree in the event the appeal fails.
10. The application is dated 8/3/2024. Judgment was delivered on 31/1/2024 about two months after the judgment was delivered.
11. There is no demonstration that the respondent will suffer prejudice if he application is allowed.
12. The courts has discretion with respect to the security for th performance of the decree in the event the appeal fails.
13. Taking into consideration the requirements of order 42 Rule 6 – I allow the application in the following terms: -
a) The stay of execution pending appeal be and is hereby granted on the following conditions:
I. The sum of Kshs. 100,000/= be paid to the plaintiff within 30 days hereof.
II. The applicant do deposit the sum of Kshs. 500,000/= in court or in a joint interest earning account in the joint names of the advocates of the parties within 45 days hereof.
III. In default of (I) and (II) the order of stay of execution will lapse automatically, the respondent will be at liberty to execute, and the application will stand dismissed with costs to the respondents.
Dated, Signed and Delivered via CTS this 8th November 2024
Mumbua T Matheka
Judge
Ms Nelima, Ms Elizabeth: Court Assistants
Counsel for the Applicants: Kimondo Gachoka & Company Advocates N/A
Counsel for the respondent: Kyalo Muiya& Company Advocates N/A