REPUBLIC OF KENYA
IN THE HIGH COURT AT MAKUENI
CIVIL APPEAL NO E017 OF 2024
GEOFREY MBATE.............................................. 1ST APPLICANT
JOHN MAINA NJONGO ………………………….……… 2ND APPLICANT
-VERSUS-
FREDRICK MULEI………………………………….………. RESPONDENT
RULING
- Before me is the Notice of Motion dated 8/3/2020 brought under section 3A, 79G, 95 of the Civil Procedure Act and Order 22 Rule 22, Order 42 Rule 6, Order 50 Rule 1 and 3 of the Civil Procedure Rule seeking stay of execution of the judgment in Kilungu MCC No. E075/2022 delivered on 31/1/2024 – whereby the appellants were found 100% liable for the Road Traffic Accident in which the respondent sustained injury, suffered loss and damage, and was awarded general damages of Kshs.600,000/= , special damages of Ksh.3,500/=.
- Aggrieved, the appellants filed this appeal and have brought this application to seek stay of execution of that judgment pending the hearing and determination of the appeal.
- The application is supported by the affidavit of John Maina Njongo – and the grounds are that he has high chances of success in the appeal, that he stands to suffer irreparable damage if the application is not allowed, he has offered security through a bank guarantee, and the respondent is of unknown means and should he be paid the sum awarded it is not evident how he would refund the same. In the event the appeal is successful.
- In a replying affidavit sworn on 17/5/2024 – the respondent depones that he is not opposed to the application on condition that the applicants deposit the entire sum of Kshs.603,500/= in a joint interest earning account in the names of both counsel.
- That however, regarding the merit of the application he is advised by his advocate that the application does not meet the requirements of Order 42 Rule 6 of the Civil Procedure Rules in that no sufficient security for the performance of the decree has been offered by the applicant never has substantive loss been demonstrated.
- Counsel for the appellant/applicant has filed submissions – I have not seen any by the respondent who opted to rely on their replying affidavit.
- The applicant relies on Kenya Revenue Authority vs Sidney Keitany Changole & 3 Others [2015] e KLR on whether or not the applicant must prove that they have an appeal with high chances of success – Edward Kamau & Another vs Hannah Mukui Gichuki & Another [2015] e KLR on the evidentiary burden upon an applicant with respect to the means of the respondent.
- The application is filed without unreasonable delay, and that the applicant is willing to provide security and relies on Gianfranco Manenthi & Another vs Africa Merchant Assurance Company Ltd [2019] e KLR.
- I have carefully considered the application, the affidavits and the submissions.
- The respondent did offer the applicant a settlement proposal that in my view would have expedited this appeal. However the applicant has not taken up that offer or responded to the same – this is contrary to the spirit of the Civil Procedure Act.
- That said it is my view that the offer made – would resolve the issue pending the hearing and determination of the appeal – the failure to even respond gives the impression that the applicant was not interested in the expedition of the matter.
- To balance the interests of both parties – I will allow the application on the following conditions:-
- There be stay of execution pending the hearing and determination of the appeal – on condition that the entire awarded sum be deposited in a joint interest earning account in the names of both advocates.
- In default thereof the stay will automatically lapse, and the respondent will be at liberty to execute.
- The respondent will have costs of this application.
- Parties are at liberty to pursue an out of court settlement.
Orders accordingly.
Dated, signed and delivered via CTS on 27/9/2024
Mumbua T Matheka
Judge