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JudgmentCHRIS MUNYWOKI MUTUA VS DANIEL MUTISO KIVILU5 min read

CHRIS MUNYWOKI MUTUA VS DANIEL MUTISO KIVILU

High Court at Makueni High Court · · Matheka, Teresia Mumbua


RULING

  1. What is before me is the Notice of Motion dated 11th January 2024  brought under sections 1A, 1B, 3A and section 95 of the Civil Procedure Act, Order 42 Rule 6(1), (2) (a) and (b) and (6) and Order 51 Rule 1 of the Civil Procedure Rules, Article 159(2) (a) of the Constitution and all other enabling provisions of the law. Seeking the following orders:
  2. That the application be certified as urgent and service thereof be dispensed with and the same be heard ex-parte in the first instance for purposes of granting prayer (2),
  3. That this Honourable court be and is hereby pleased to grant stay of execution of the decree in Makueni CMCC No. E009 of 2023 pending the hearing and determination of this application.
  4. That this Honourable court be pleased to grant the applicant/appellant stay of execution of the decree in Makueni CMCC No. E009 of 2023 pending the hearing and determination of the appeal and
  5. That the costs of the application be provided for.

The grounds for te application are inter alia that:

  1. The judgment of the court was delivered by Hon. Mutua on the 15th December, 2023 in Makueni CMCC No. E009 of 2023 in favour of the respondent;
  2. the applicant/appellant being aggrieved by the said judgment has since filed a Memorandum of Appeal and written to the executive officer, Machakos Small Claims court requesting for proceedings as well as certified copy of judgment,
  3. Consequently the applicant/appellant, being desirous of prosecuting the intended appeal seeks stay of execution pending hearing and determination of the instant application and stay of execution pending the hearing and determination of the preferred appeal.
  4. The appeal is meritorious with a good chance of success.
  5. The instant application is brought in good faith and further, the respondent is unlikely to suffer any prejudice which if anything can be remedied by damages.
  6. The applicant/appellant is ready and willing to deposit a portion of the decretal sum with the court pending hearing and determination of the appeal.
  7. This application has been made without any unreasonable delay.
  8. The application is supported by the affidavit of Chris Munywoki Mutua sworn on even date where he depones that he is the applicant/appellant herein fully conversant with the facts of this case ;aware that the trial court delivered judgment on the matter finding against me applicant/appellant, and being aggrieved and dissatisfied with the judgment of the subordinate court instructed the advocates on record to file an appeal which they proceeded to; has annexed the Memorandum of Appeal; is ready and willing to abide by such terms regarding the prosecution of the appeal as the court may including the deposit of half of the judgment sum as security for costs to court within 45 days; that he stands to suffer great harm and inconvenience and to and  substantial loss as the decree holder/respondent will execute the decree in Makueni CMCC No. E009 of 2023 if the order is not granted.
  9. The applicant has filed the Memorandum of Appeal of appeal where he contends;
  10. That the learned trial magistrate erred in law and in fact by failing to consider conventional awards for general damages in cases of similar injuries and awarded general damages for pain and suffering which was inordinately high;
  11. The learned trial magistrate erred in fact and law by failing to apply the correct legal principles in awarding general damages for injuries suffered which sum was inordinately high and not commensurate to the injuries sustained.
  12. The learned trial magistrate erred in law and in fact by failing to consider the appellant’s submissions and judicial authorities on quantum thereby arriving at an erroneous figure on quantum.
  13. The learned trial magistrate erred in law and in fact by failing to take into account the pertinent issues raised in the appellant’s’ submissions
  14. The learned trial magistrate erred in law and in fact in failing to pay regard to decisions relied upon in the defendant’s submissions that were guiding in the amount of quantum that is appropriate and applicable in similar injuries as the case he was deciding.
  15. That the learned trial magistrate erred in law and fact in assessment of quantum thereby giving an award on quantum on general damages of Ksh. 1,000,000 that was overly in excess in the circumstances of the case.
  16. The learned trial magistrate’s judgment consequently occasioned a miscarriage of justice.

And seeks the following orders:

  1. This appeal be allowed and the learned magistrate’s decision be set, quashed and be substituted by this Honourable court’s order and/or reassessment of general damages;
  2. This Honourable court do adjudicate and determine this matter and enter a just judgment in light of the evidence on record.
  3. The court do make such orders as it may deem appropriate.
  4. Costs of this appeal be awarded to the appellant.
  5. Parties filed written submissions which I have considered.
  6. The issue is whether the application has fulfilled the requirements of Order 42 Rule 6 of the CPR: timeliness of filing the application, proof of imminent substantial loss and deposit of security for the performance of the decree.
  7. For the applicant it is submitted that he stands to suffer substantial loss, that he brought the application in good time.

On Security the applicant has proposed to provide security by depositing a portion of the decretal sum in court or a joint interest earning account as a condition for grant of orders. The applicant relies on Arun C. Sharma –vs- Ashana Raikunda t/a Rairundalia & Co. advocates & 2 Others [2014] e KLR. And also, James Wangalwa & Anor v Agnes Naliaka Cheseto [2012] eKLR; Vishram Ravji Halai b Thornton & Turpin Civil Application (1990) KLR 365.

  1. For the respondent it I submitted that substantial loss has not ben demonstrated but should this Honourable court find it reasonable to allow this application, then in the interests of justice and fairness it should be a condition that the applicant herein be ordered to deposit the entire decretal sum of Kshs.505,250/= awarded to the respondent in a joint interest earning account in a reputable commercial bank to be held by both advocates for the parties in this matter or to be deposited with the court within a period of seven (7)  days.
  2. I note that in the supporting affidavit the applicant makes reference to the Small Claims Court in Machakos. I will consider that to be an error on their part as this appeal arises from Makueni MCCC no. E099 of 2022.
  3. I note from the submissions that there is a meeting of minds with that a conditional stay can issue to the applicant. This is truly helpful as it gives room for the appellant to pursue his right of appeal while the decretal sum is secured should
  4. In the circumstances I allow the application for stay pending appeal on condition that the sum of Ksh 505, 250 be deposited in a joint interest earning account of both advocates within 30 days hereof. In default the stay will lapse automatically, the application will stand dismissed with costs to the respondent.
  5. The Record of Appeal be filed and served within 30 days hereof. Mention before the DR on 19th June for compliance on this.
  6. Orders accordingly

Dated signed and delivered, on 17th May 2024.

……………………………….

MUMBUA T. MATHEKA

                     JUDGE

    CHRIS MUNYWOKI MUTUA VS DANIEL MUTISO KIVILU CHRIS MUNYWOKI MUTUA VS DANIEL MUTISO KIVILU