Ruling
1. On 30/05/2023 the Hon. E. Kemei – Resident Magistrate delivered her judgment in Makueni MCCC 92/2021.
2. The defendants were aggrieved and filed appeal on the following grounds
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 law and fact] by failing to exonerate the appellant from any wrong doing in view of the actions of the respondent.
3) That the learned magistrate erred in fact and in law in finding that the respondent was entitled to general damages of Kshs.250,000/=.
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 damages 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 on quantum thereby arrived at a decision unsustainable in law.
Seeks the following orders:
a) That the whole judgment of the Hon. E. Kemei Resident Magistrate in Makueni delivered on 22nd May, 2023 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.
3. The defendants filed Notice of Motion dated 31/7/2023 seeking orders inter alia:
1) That this honourable court be pleased to order a Stay of Execution of the judgment delivered by the trial court on 22nd May, 2023, 30th May, 2023 pending the hearing and determination of the intended appeal.
2) That the appellants/applicants be allowed to furnish the court with bank guarantee as security pending the hearing and determination of the intended appeal and the instant application.
3) That the costs of this application abide the outcome of the appeal.
4. The grounds for the application are set out the face of the application and the affidavit in support sworn by Douglas Ndegwa Kanini on 31/07/2023.
5. He contends inter alia that:
1. That judgment herein was delivered on 22nd May, 2023, 30th May 2023, and the respondent was awarded liability 100% and general damages Kshs.250,000/= special damages Kshs.6,100/= and interest.
2. 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.
3. 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.
4. That the appellant/applicant is 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 the application and the intended appeal.
6. Has annexed a bank guarantee as a security.
7. The application is opposed vide replying affidavit of Julius Nguli Loli alias Julius Loli sworn on 23/8/2023.
8. He depones that: That the application dated 31st July 2023 is frivolous vexatious bad in law untenable , and a gross abuse of this honorable court’s process , that it is brought in bad faith to delay the finalization of this matter; That the judgment herein was delivered on 30th may in the presence of the appellant counsel and the filed memorandum of appeal does not raise any grounds for an arguable appeal because the appellants are alleging that on liability the trial court did not consider their evidence yet they did not call any witnesses to rebut the respondents evidence; that despite numerous opportunities offered to the appellants to file their submissions on quantum the appellants failed to do so; that the respondent is a man of means as he works as a welder and in the unlikely event that the appeal is successful he would be willing and able to refund the decretal I sum; that the affidavit in support of the application is fatally defective and therefore the application is bound to fail; in addition that the appellant’s driver was charged with an offense of dangerous driving and pleaded guilty and was fined the sum of Kenya shillings 150,000 in Makueni law courts and this judgment has never been appealed against hence this application is an afterthought whose sole intention is to delay the enjoyment of the respondents lawfully obtained judgment.
9. Parties filed written submissions which I have considered carefully.
10. The only issue is whether the application for stay of execution pending appeal is tenable – whether the applicant has complied with Order 42 Rule 6.
11. The judgment was delivered on 30/5/2023 the application was filed on 20/6/2025 and amended on 31/7/2023. Hence the application was brought in good time.
12. From the judgment the respondent was a passenger during the alleged road traffic accident hence the issue of liability appears to have been settled. In any event the applicant has not contested the fact of their driver having pleaded guilty to the offence of causing death by dangerous driving in the accident in which the respondent was injured.
13. The amount involved is Kshs. 256,000/= the respondent depones that he is a welder and if paid the money it would not be difficult to refund the same.
14. The applicant has annexed a copy of a bank guarantee stamped 23/2/2022 by family bank. However, it is not dated by the “borrower” or executed by the directors of the guarantor. Hence it is unacceptable.
15. The only issue that appears to be available for argument on appeal is quantum of damages.
16. Having taken into consideration the pleadings, submissions and the law, – I allow the application in the following terms –
1) That there be stay of execution pending appeal,
2) That the applicant pay to the respondent the sum of Kshs. Half the decretal sum within 30 days hereof.
3) The applicant do deposit the other half of the decretal sum in in a joint interest earning account in the names of the advocates within 30 days hereof.
4) The applicant to file and serve the Record of Appeal within 30 days hereof.
5) In default of any of the above the stay will lapse, the application will stand dismissed with costs to the respondent.
6) Otherwise – the costs of the application will abide the appeal.
Dated, signed and delivered this via CTS this 28th day of March 2025
Mumbua T Matheka
Judge