1. Before me is the Notice of Motion dated 3/4/2024 brought under Article 159(2) (d) of the Constitution of Kenya 2010, Order 22 Rule 22, Order 42 Rules 6 Order 51 Rules 1 and 3 of the Civil Procedures 2010, section 1A, 3 and 3A of the Civil Procedure Act and all other enabling provisions of the law.
2. It seeks orders:
1) Spent
2) Spent
3) That this Honourable court be pleased to order a stay of execution of the judgment/decree given by Hon. Gesora P (CM) in Makueni CMCC E156 of 2021 Dorcas Mbinya Mulwa v Elijah Mwangi Maina & 2 Others on 14th February 2024 pending determination of the appeal.
4) That the Honourable court be pleased to allow the appellant/applicant to deposit a bank guarantee as security for the due performance of the decretal amount which is the subject of the applicant’s appeal.
5) That the costs of this application abide the outcome of the appeal.
3. The grounds are inter alia, that: -
a) Judgment herein was entered on 14th February 2024 in favour of the 1st respondent/plaintiff against the appellant/defendant and 2nd and 3rd respondents/third parties at 75:25 on liability between the defendant and the third parties when in fact the evidence on record clearly showed that the plaintiff and the third parties were to blame.
b) The appellant/applicant being dissatisfied with the judgment herein has filed an appeal against the award being Makueni HCCA NO. E026 OF 2024 which appeal raises arguable points of law and facts and has overwhelming chances of success.
c) There is no stay of execution of the said judgment and unless stay of execution is granted in the interim, the respondent will proceed to execute the judgment herein and the applicant’s appeal will be defeated and rendered nugatory subjecting it to suffer irreparable loss and damage.
d) The appellant/applicant is ready, willing and able to abide by any conditions that this Honourable court may impose for the granting of the orders sought but proposes to deposit a bank guarantee as security for due performance of the decree.
e) Should execution proceed as against the appellant/applicant, they will suffer injustice, irreparable loss and damage as the decree is for a substantial sum which if paid to the 1st respondent/plaintiff and the appeal is successful, the appellant/applicant will not be able to recover the same from the 1st respondent.
f) This application has been brought timeously without unreasonable delay.
4. It is supported by the affidavits of Elijah Mwangi Maina and Patricia Mugambi reiterating these grounds.
5. I did not find any response by counsel for the respondent.
6. I found submissions by counsel for the applicant which I have considered.
7. I have also perused the Memorandum of Appeal where the appellant contends that:
1) That learned trial Magistrate erred in law and in fact by apportioning liability at 75:25 between the defendant and the third parties when in fact the evidence on record clearly showed that the plaintiff and the third parties were wholly to blame for the accident.
2) That learned trial Magistrate erred in law and in fact by applying the wrong principles and misapprehending the evidence and as a result arrived at a figure on quantum so inordinately high as to represent an entirely erroneous estimate.
3) That the learned trial Magistrate erred in law and in fact in awarding Kshs.1,200,000 as general damages and Kshs.300,000/= as cost of future medical expense without any basis or evidence.
4) That the learned trial magistrate erred in law and in fact by failing to dismiss the suit against the appellant/defendant for want of proof despite of the plaintiff failing to meet the standard of proof.
8. The Appeal seeks:
1) That this Honourable court be pleased to be set aside the judgment of the Honourable Magistrate with regard to the findings on liability.
2) That this Honourable court be pleased to be set aside the judgment of the Honourable Magistrate with regard to the findings on general damages and future medical costs.
3) That this Honourable court does its own fresh assessment of the evidence presented before the trial court and makes a fresh determination on liability and quantum under the relevant statutes with the net effect of dismissing the suit against the appellant/defendant.
4) That the costs of this appeal be borne by the respondents.
5) That such further or other orders be granted as this Honourable court may deem fit and just.
9. The only issue for determination is whether the application has any merit.
10. Order 42 Rule 6 provides that An applicant for stay of execution of a decree or order pending appeal is obliged to satisfy the conditions set out in Order 42 Rule 6(2), aforementioned: namely (a) that substantial loss may result to the applicant unless the order is made, (b) that the application has been made without unreasonable delay, and (c ) that such security as the court orders for the due performance of such decree or order as may ultimately be binding on the applicant has been given. See Antonie Ndiaye vs African Virtual University [2015] e KLR.
11. I have considered the application, the submissions by counsel.
12. The only issue is whether the appeal has merit.
13. The appeal was filed within time.
14. The appellant is appealing against both the liability and quantum.
15. The amount involved is substantial – the appellant has offered a bank guarantee as security – however the court retains the discretion to determine what would amount to security for the performance of the decree.
16. Having considered the application – I allow the same in the following terms:-
1) That there be stay of execution of the decree or judgment in Makueni CMCC E156 of 2021 pending the hearing and determination of the appeal herein on the following conditions:
a) The appellant to pay to the plaintiff the sum of Kshs. 150,000/= within 30 days hereof.
b) The sum of Kshs. 550,000/= be deposited either in court or in a joint interest earning account in the names of both counsel within 30 days hereof.
c) In default the stay will lapse automatically the respondent will be at liberty to execute; and the application will stand dismissed with costs to the respondent.
Dated, Signed and Delivered via CTS, this 8th November 2024
Mumbua T Matheka
Judge
Ms Nelima/Ms Elizabeth Court Assistants
K Itonga & Co Advocates :Counsel for Applicant N/A
Mulyungi & Mulyungi Associates : Counsel for the Respondents N/A