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JudgmentCOAST RAHA VS QUINTER AKOTH OMWONO7 min read

COAST RAHA VS QUINTER AKOTH OMWONO

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


What is before me is the Notice of Motion under Order 21 Rule 1B, order 22 Rule 22, Order 22, Order 40 Rule 6, order 51 Rule 1 of the Civil Procedure Rules, section 1A, section 1A, 1B and 3A of the Civil Procedure Act, Article 159 (2) (a) and (d) of the Constitution of Kenya, 2010 and all other enabling provisions of the law) seeking the following orders:

  1. That the Honourable court be pleased to admit the application herein for hearing during the current court vacation due to its extreme urgency.
  2. That this application be certified urgent, service thereof be dispensed with and the same be heard ex-parte in the first instance.
  3. That this Honourable court be pleased to grant a stay of execution of the judgment and/or decree issued by Honourable Felix Makoyo Principal Magistrate on the 11th August 2023, pending the hearing and determination of this application.
  4. That this Honourable court be pleased to grant a stay of execution of the judgment and/or decree issued by Honourable Felix Makoyo Principal Magistrate on the 11th August 2023 pending the full hearing and determination of this appeal in Makueni.
  5. That this Honourable court allow the applicant to furnish the court with security in the form of a bank guarantee from the Family Bank.
  6. That the application be heard inter partes on such date and time as this Honourable court may direct.
  7. That the costs of this application abide the outcome of the appeal.
  8. That this Honourable court be pleased to issue any other order and/or direction it deem fit to grant in the circumstances.

The grounds for the application are inter alia that;

That judgment herein was entered on 11th August 2023, and the appellants were found to be 100% liable. Respondent was awarded Kshs. 180,000/= General Damages and Kshs.3,550/= for special damages with costs and interest.

That the judgment is of substantial amount and the appellants/applicants are apprehensive that if the respondent is paid he may deal with the same in a manner prejudicial to the appellants/applicants and if the appeal is successful, he might not be able to recover the same from the plaintiff/respondent.

It is supported by the affidavit of  Abubakar Talib who depones ;That he is informed by his advocates on record which information he verily believe to be true on 11th August, 2023, judgment was delivered against the applicants wherein the plaintiff was awarded general damages of Kshs.180,000/= special damages Kshs.3550/= plus costs and interests of the suit. Liability apportionment was at 100% in favour of the plaintiff as against the defendants; That he is informed by his advocates on record which information he verily believe to be true that the judgment and quantum is excessive and has a high chance of success if the appeal is upheld.

The applicant filed this appeal on the grounds in the Memorandum of appeal that;

  1. That the learned trial magistrate erred in law and fact in finding the defendants/appellants 100% 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. 180,000/=, special damages of Kshs.3550/= 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 respondents’ injuries and therefore erred in law in her assessment of damages specifically quantum awarded to the respondent which was manifestly excessive.
  4. That the learned trial magistrate grossly misdirected herself in treating the evidence presented before her on quantum and consequently coming to a wrong conclusion on the same;
  5. That the learned trial magistrate erred in awarding a sum in respect of future medical expenses which was inordinately high in the circumstance 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 thereby arrived at a decision unsuitable in law.

The appeal will seek the following orders:-

  1. That the whole judgment of Honourable Felix Makoyo – principal Magistrate delivered on 11th August 2023 be set aside the same be assessed afresh.
  2. That this appeal be allowed
  3. That the costs of this appeal and that of the trial court be awarded to the appellant.
  4. That such further orders may be made by this Honourable court may deem fit to grant.

The application is opposed through the Replying affidavit of Quinter Akoth Omwono to the effect that;That she is informed by her advocates to which she believe the same to be true that the allegations made by the appellant herein that it has an appeal with high chances of success is unfounded and has been made with the sole purpose of hoodwinking this Honourable court to grant the orders sought. The trial court was justified in holding the appellant 100% liable for the accident and awarding her general damages of Kshs.180,000/=; That she is also informed by her advocates to which she believe the same to be true that the applicant herein has not satisfied the conditions that must be met before the orders sought are granted. The applicants herein have not specifically shown the loss that it intends to suffer if the prayers sought are granted. She urge this Honourable court to decline the grant of the orders sought.

Parties filed written submission and the appellant relies on The Court of Appeal in Kenya Revenue Authority –vs- Sidney Keitany Changole & 3 Others [2015) e KLR where the court held:

“This court has further held that the applicant need only prove or establish one arguable point nothing that an arguable appeal is not necessarily one that will succeed but one that is not frivolous.”

In Edward Kamau & Anor –vs- Hannah Mukui Gichuki & Anor (2015) e KLR.

This court appreciates that the applicants being a party seeking favourable exercise of the court’s discretion is under a legal duty to place some material before the court upon which such discretion should be exercised. In other words they should prove that the respondent is impecunious that if the decretal sum is paid then they will not recoup should the appeal succeed, thereby rendering it nugatory. They have also argued that although the respondent is offering a bank guarantee, that is not deposed on her affidavit of means.”

I am in agreement with the applicants that in the absence of an affidavit of means, it may be construed that the respondent is not possessed of sufficient means and therefore not in a position to reimburse decretal money should the appeal succeed.

In Gianfranco Manenthi & Anor –vs- Africa Merchant Assurance Company Ltd (2019) e KLR, the court observed:

“… the applicant must show and meet the condition of payment of security for due performance of the decree. Under this condition a party who seeks the right of appeal from money decree of the lower court for an order of stay must satisfy this condition on security. In this regard, the security for due performance of the decree under Order 42 Rule 6(1) of the Civil Procedure Rules, it is trite that the winner of litigation should not be denied the opportunity to execute the degree in order to enjoy the fruits of his judgment in case the appeal fails.

Thus the objective of the legal provisions on security was ne ver intended to fetter the right of appeal. It was also put in place to ensure that courts do not assist litigants to delay execution of decrees through filing vexatious and frivolous appeals. In any event, the issue of deposit of security for due performance of decree is not a matter of willingness by the applicant but for the court to determine.

For the respondent it is submitted that the application has not me t the threshold for the orders sought and reliance was made on Charles Wahome –vs- Angela Wairimu Gethi [2008] e KLR

“In the circumstances of this case, the applicant would suffer substantial loss rendering the appeal, if successful nugatory only if the suit land is disposed of before the appeal is determined. The applicant does not claim that the suit land would be disposed of. The applicant has not in our view, established that unless stay is granted, he will suffer substantial loss and that the appeal, if successful would be rendered nugatory.

And Samuel Watuka Muindi –vs- Jayesh Vijay Patel [2018] e KLR the High Court held:

“ .. The law, however appreciates that it may not be possible for the applicant to know the respondent’s financial means. The law is therefore that all an applicant can reasonably be expected to do, is to swear, upon reasonable grounds, that the respondent will not be in a position to refund the decretal sum if it is paid over to him and the pending appeal was to succeed but is not expected to go into the bank accounts, if any, operated by the respondent to see if there is any money there.”

The applicant is appealing against both the liability and the award in damages.

The lower court judgment was not annexed and I have no idea how the accident happened as the Lower Court file has not been availed, and the respondent did not help.

I note that the application was filed in good time, security has been offered in terms of a bank guarantee which is not acceptable to the respondent.

There is the need to balance the interests of the appellant and those of the successful litigant, the respondent

The application is allowed in the following terms: That the applicant pays to the respondent ¾ the decretal sum within 30 days hereof. The balance be deposited in court. Both these within 30 days hereof.

In default the stay order will automatically lapse, the application will stand dismissed with costs  and the respondent will be at liberty to execute.

The ROA be filed and served within 30 days hereof .

Mention before the DR on 19th June 2024 to confirm compliance with respect to the ROA.

Orders accordingly

Dated, signed and delivered virtually  on 17th May 2024


    COAST RAHA VS QUINTER AKOTH OMWONO COAST RAHA VS QUINTER AKOTH OMWONO