1. The application before me is supported by the certificate of urgency dated 27/5/2024.
2. It is brought under Order 22 Rule 22, Order 42 Rule 6, Order 51 Rule 1&3 of the Civil Procedure Rule 2010, sections 1A, 3, 3A of the Civil Procedure Act, Article 159(2) (d) of the Constitution of Kenya 2010.
3. It seeks orders: -
1) That this application be certified urgent, service be dispensed with thereof and the same be heard ex-parte in the first instance.
2) That this honourable court be pleased to order a stay of execution of the judgment/degree issued by Hon. Gesora P. (CM) in Makueni CMCC E154 of 2021 Samuel Kyalo Maingi V Elijah Mwangi Maina on 11th April, 2024 pending hearing and determination of this application.
3) That this honourable Court be pleased to order a stay of execution of the judgment /degree issued by Hon. Gesora P. (CM) in Makueni CMCCE154 of 2021 Samuel Kyalo Maingi Vs Elijah Mwangi Maina on 11th April , 2024 pending hearing and 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.
4. The grounds are inter alia that -
a) Judgment in Makueni CMCC No. E154 of 2021 was entered on 11th April, 2024 in favour of the Respondent herein against the Appellant/Applicant at 70:30 on liability between the parties with the appellant shouldering 70% liability and the respondent 30% when in fact the evidence on record clearly showed that the respondent was entirely to blame for the accident. The trial court also dismissed the appellant’s counterclaim despite overwhelming evidence in support of the same.
b) The appellant/applicant being dissatisfied with the judgment herein has filed the present appeal against the judgment being Makueni HCCA No. E051 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, he will suffer injustice, irreparable loss and damage as the decree is for a substantial sum which if paid to the respondent and the appeal is successful, the appellant will not be able to recover the same from the respondent
f) This application has been brought timeously without unreasonable delay.
5. The application is supported by the affidavit of Elijah Mwangi which reiterates the grounds on the face of the motion, only adding that his insurer is ready to deposit security in the form of a bank guarantee for the due performance of the decree and abide by any other conditions the court may impose; that the fear is that should he pay the decretal sum, his appeal will be rendered a nullify.
6. The application is opposed vide the replying affidavit of Samwel Kyalo Maingi.
7. At paragraph 3 of the affidavit he depones that on the advice of his advocate – he in aware that the appeal is on both quantum and liability – hence he is not opposed to the application for stay of execution save for the issue of security – his prayer is that the decretal sum be deposited in a joint interest account in the names of both counsel pending the hearing and determination of the appeal.
8. Parties chose to proceed by way of written submissions which I have considered.
9. The issue for determination is whether the application has merit.
10. Essentially, the application is not opposed – save on the issue of security.
11. Order 42 rule 6 provides that it is conditional for an order of stay pending appeal to be accompanied by an order on security for the performance of the decree.
12. The applicant relies on Mpaka Road Developments Ltd Vs Bharat Rach & Another [2005] eKLR where the court allowed the deposit of a bank guarantee, and in Firoze Nurale Hirji Vs Housing Finance Company of Kenya Ltd & Watts Enterprises Limited where the court expressed the view that the right and proper thing to ensure that the “security should be given in a way which is least disadvantageous to the party giving the security…” And that the security could be in the form of bank guarantee, cash or both.
13. For the respondent it is argued that the court must balance the interest of both sides in the interest of justice. It is argued that the applicant has not attached the purported bank guarantee for the court to consider its validity. Relying on Paul Nderitu Mwangi & Another vs Jacinter Mbete Mutisya & Another (Suing as the Legal Representative of the Estate of William Mbithi Musonzo (deceased) [2018] eKLR, it is submitted that the best option is that one that balances the interest of both parties.
14. I have perused the judgment of the subordinate court in Makueni MCCC E154/2021 where the court awarded the sum of Kshs. 1,045,550 after contribution. It is indicated therein that the plaintiff sought Kshs. 1,500,000 while the defendant proposed Kshs. 750,000 as general damage for pain and sufferings.
15. I have also perused the memorandum of appeal.
16. Considering the submissions and the affidavit – it is my view that the interests of justice call upon me to balance the interest of both the applicant and respondent – and to do it in such a way that the – should the outcome be in favour of the respondent, then he should not be subjected to another process of pursuing the fruits of his valid judgment.
Hence -
1) The application for stay of execution pending the hearing and determination of the appeal herein is allowed subject to the applicant depositing ½ the decretal sum in a joint interest earning account in the names of both counsel for the applicant and respondent within 30 days hereof.
2) In default of (1) above the stay will lapse automatically and the respondent will be at liberty to execute.
3) The record of appeal be filed and served within 30 days hereof
4) Pursuant to (3) above mention before the Deputy Registrar in 30 days to thereof for compliance.
5) Orders accordingly.
Dated, signed and delivered via CTS this 11th July 2025 (CTS Down)
Mumbua T Matheka
Judge
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2. It is brought under Order 22 Rule 22, Order 42 Rule 6, Order 51 Rule 1&3 of the Civil Procedure Rule 2010, sections 1A, 3, 3A of the Civil Procedure Act, Article 159(2) (d) of the Constitution of Kenya 2010.
3. It seeks orders: -
1) That this application be certified urgent, service be dispensed with thereof and the same be heard ex-parte in the first instance.
2) That this honourable court be pleased to order a stay of execution of the judgment/degree issued by Hon. Gesora P. (CM) in Makueni CMCC E154 of 2021 Samuel Kyalo Maingi V Elijah Mwangi Maina on 11th April, 2024 pending hearing and determination of this application.
3) That this honourable Court be pleased to order a stay of execution of the judgment /degree issued by Hon. Gesora P. (CM) in Makueni CMCCE154 of 2021 Samuel Kyalo Maingi Vs Elijah Mwangi Maina on 11th April , 2024 pending hearing and 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.
4. The grounds are inter alia that -
a) Judgment in Makueni CMCC No. E154 of 2021 was entered on 11th April, 2024 in favour of the Respondent herein against the Appellant/Applicant at 70:30 on liability between the parties with the appellant shouldering 70% liability and the respondent 30% when in fact the evidence on record clearly showed that the respondent was entirely to blame for the accident. The trial court also dismissed the appellant’s counterclaim despite overwhelming evidence in support of the same.
b) The appellant/applicant being dissatisfied with the judgment herein has filed the present appeal against the judgment being Makueni HCCA No. E051 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, he will suffer injustice, irreparable loss and damage as the decree is for a substantial sum which if paid to the respondent and the appeal is successful, the appellant will not be able to recover the same from the respondent
f) This application has been brought timeously without unreasonable delay.
5. The application is supported by the affidavit of Elijah Mwangi which reiterates the grounds on the face of the motion, only adding that his insurer is ready to deposit security in the form of a bank guarantee for the due performance of the decree and abide by any other conditions the court may impose; that the fear is that should he pay the decretal sum, his appeal will be rendered a nullify.
6. The application is opposed vide the replying affidavit of Samwel Kyalo Maingi.
7. At paragraph 3 of the affidavit he depones that on the advice of his advocate – he in aware that the appeal is on both quantum and liability – hence he is not opposed to the application for stay of execution save for the issue of security – his prayer is that the decretal sum be deposited in a joint interest account in the names of both counsel pending the hearing and determination of the appeal.
8. Parties chose to proceed by way of written submissions which I have considered.
9. The issue for determination is whether the application has merit.
10. Essentially, the application is not opposed – save on the issue of security.
11. Order 42 rule 6 provides that it is conditional for an order of stay pending appeal to be accompanied by an order on security for the performance of the decree.
12. The applicant relies on Mpaka Road Developments Ltd Vs Bharat Rach & Another [2005] eKLR where the court allowed the deposit of a bank guarantee, and in Firoze Nurale Hirji Vs Housing Finance Company of Kenya Ltd & Watts Enterprises Limited where the court expressed the view that the right and proper thing to ensure that the “security should be given in a way which is least disadvantageous to the party giving the security…” And that the security could be in the form of bank guarantee, cash or both.
13. For the respondent it is argued that the court must balance the interest of both sides in the interest of justice. It is argued that the applicant has not attached the purported bank guarantee for the court to consider its validity. Relying on Paul Nderitu Mwangi & Another vs Jacinter Mbete Mutisya & Another (Suing as the Legal Representative of the Estate of William Mbithi Musonzo (deceased) [2018] eKLR, it is submitted that the best option is that one that balances the interest of both parties.
14. I have perused the judgment of the subordinate court in Makueni MCCC E154/2021 where the court awarded the sum of Kshs. 1,045,550 after contribution. It is indicated therein that the plaintiff sought Kshs. 1,500,000 while the defendant proposed Kshs. 750,000 as general damage for pain and sufferings.
15. I have also perused the memorandum of appeal.
16. Considering the submissions and the affidavit – it is my view that the interests of justice call upon me to balance the interest of both the applicant and respondent – and to do it in such a way that the – should the outcome be in favour of the respondent, then he should not be subjected to another process of pursuing the fruits of his valid judgment.
Hence -
1) The application for stay of execution pending the hearing and determination of the appeal herein is allowed subject to the applicant depositing ½ the decretal sum in a joint interest earning account in the names of both counsel for the applicant and respondent within 30 days hereof.
2) In default of (1) above the stay will lapse automatically and the respondent will be at liberty to execute.
3) The record of appeal be filed and served within 30 days hereof
4) Pursuant to (3) above mention before the Deputy Registrar in 30 days to thereof for compliance.
5) Orders accordingly.
Dated, signed and delivered via CTS this 11th July 2025 (CTS Down)
Mumbua T Matheka
Judge
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