ESTHER KALEKYE MUNYAO VS MARGARET KANINI PHILIP AND MIOZ MOTORS LIMITED

RULING

What is before me is the  Notice of Motion dated 22^nd April 2022 brought under section 3A, 79G and 95 of the Civil procedure Act (Cap 21), Order 22, Rule 22, Order 42 Rule 6, Order 50 Rule 6 and order 51 Rules 1 and 3 of the Civil Procedure Rules, 2010 and all other enabling provisions of the law. 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/decree delivered on 30^th March, 2023 by Hon. M.K Mutegi (P.M) sitting at Tawa in Civil Suit No. 107 of 2021 pending the hearing and determination of this application.
3. That this honourable court be pleased to stay the execution of the judgment/decree delivered on 30^th March, 2023 by Hon. M.K Mutegi (P.M) sitting at Tawa in Civil Suit No. 107 of 2021 pending the hearing and determination of the appellant’s appeal filed at the High Court of Kenya at Makueni.
4. That this honourabble court allow the applicants to furnish the court with security in the form of a bank guarantee from a reputable bank pending the full hearing and determination of this appeal.
5. That the application be heard inter parties on such date and time as this honourable court may direct.
6. That the costs of this application abide the outcome of the appeal.

The grounds as set out on its face include that:

1. Judgment herein was delivered on the 30^th March, 2023 and the 30 days stay of execution granted by the Honourable court are in the verge of lapsing.
2. The Honourable court entered judgment against the appellant in favour of the respondent and held the appellant 100% liable and the respondent was awarded general damages Kshs. 350,000/=;

special damages Kshs. 17,100/= plus costs and interest at court rates.

3. The appellant/applicant have preferred an appeal on quantum vide Memorandum of Appeal herein.

These grounds are reiterated in the supporting affidavit sworn by Esther Kalekye Munyao on even date together with the annexures therewith.

The application is opposed vide the Replying Affidavit of Margret Kanini Philip sworn on 17^th May 2023 where she deposes inter alia

4. 1. That I am  advised by my  advocates on record which advice I  verily believe, that the trial court entered liability at 100% in favor of the plaintiff/1^st respondent herein against the defendants who are the 2^nd respondent and appellant herein.
   2. That I am  further advised by my  advocates on record which advice I  verily believe, that Order 42 Rule 6(2)(b) of the Civil Procedure Rules, 2010 provides that no order for stay of execution shall be made unless 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 by the applicant.
   3. That if at all the honourable court is to order any security, I  pray that at least ¾ of the decretal sum be paid to me , as the issue of liability is not disputed by the applicant, in cash   not bank guarantee as I  need to enjoy fruits of the judgment already.
   4. That if the court allows the application, which application I pray to be dismissed, then the applicant be compelled to release the sums as quoted above and the rest to be deposited in a reputable bank through an interest earning account in the names of my  advocates and the applicant’s advocate on record.
5. Parties filed rival submissions which I have considered.
6. The only issue is whether the application has any merit by compliance with order 42 rule 6 of the CPR.
7. I note that the respondent is not totally opposed to the application if the court allows her to enjoy part of the fruits of her judgment.
8. The bank guarantee as security is opposed and I agree as it is date stamped 23^rd February 2022 and is not specific to this case.
9. I note from the memorandum of appeal that liability is not in issue on appeal.
10. In the foregoing circumstances, the application for stay of execution pending appeal is allowed in the following terms

a. That half the decretal sum be paid to the respondent within 30 days hereof

b. the other half be deposited in a joint interest earning account in the names of both advocates within 30 days hereof

c. in default of a. and b. above, the stay order will lapse automatically and the application will stand dismissed with costs to the respondent.

d. the record of appeal be filed and served within 30 days hereof

e. the matter be mentioned before the DR on 5^th June 2024 for compliance with d.

f. the costs of this application be borne by the applicant

Dated, signed and delivered virtually this 2^nd My 2024