1. The application before me is dated 16/6/2023 seeking inter alia stay of execution pending the hearing and determination of the appeal. It is brought under Order 42 Rule 6 of the Civil Procedure Rule supported by the grounds on its face, and the affidavit of Douglas Ndegwa sworn on 16/6/2023 and the Memorandum of Appeal.
2. The application was opposed through the replying affidavit of the respondent Julius Nguli Loli sworn on the 23/8/2023.
3. The intended appeal seeks to challenge the judgment of the trial court on quantum in which the court gave an award of Kshs.200,000/= for pain and suffering.
4. Parties argued the application by way of written submissions.
5. For the applicant it is argued that the applicant’s memorandum of appeal will be rendered nugatory if the stay is not granted – that he will suffer substantial loss as the respondent’s ability to refund the money is not guaranteed should the appeal succeed – that he is ready to provide security.
6. For the respondent it is submitted that the application is not merited – first because the award was for kshs.200,000/= for pain and suffering yet the applicant had submitted for Kshs.150,000/= in the lower court; that the respondent deponed that he earns a living as a welder and can refund the Kshs.200,000/= if it is paid to him and the appeal succeeds, and in any event on the face of it he is entitled to the fruits of his judgment see George Orara vs KTN Nbi HCCC 15/1991; that the application was brought two months after the judgment of the lower court without any explanation and no security has been provided.
7. The only issue for determination is whether the application has merit.
8. I have carefully considered the application, the affidavit and submissions.
9. No security has been offered and the respondent has demonstrated his ability to refund the money which ability has not been challenged.
10. The award made compared with what was submitted for by the applicant in the lower court is not substantially different and in the event of a successful appeal, it is apparent the respondent would be able to pay the difference.
11. In the circumstances I find that the application is not merited, and is not allowed. Costs to the respondent.
Dated, Signed and Delivered, via CTS this 16th day November 2024
Mumbua T Matheka
Judge