JALKARIM HOLDINGS LIMITED VS CICILIA WAMBUA JOHN & PETER MULWA JOHN AND PLATNUM TRANSPORTERS LIMITED

1. On   2/7/2023   the learned trial court (Hon.  F. Makoyo) delivered   judgement   in Kilungu   MCCC E086/2022   in favour    of the Plaintiff   at 100% liability   against   both Defendants, and damages at Kshs.  5,304,700. 
2. The Defendants   were aggrieved and filed an appeal against both liability and quantum vide   their Notice of    Motion dated   21/8/2023.
3. The same was opposed vide replying    affidavit   of the 1^st Plaintiff/Respondent. 
4. The Plaintiff    made the proposal on without   prejudice that if ½   the decretal sum would be secured by way of insurance    bond/bank guarantee, and the other half   be released to her she would be agreeable to a stay of execution pending the hearing and determination   of the appeal. 
5. The Plaintiff/1^st Respondent filed a cross appeal on the multiplicand   adopted by the    subordinate    court in determining    loss of dependency.
6. Parties   canvassed the application by way of written submissions. 
7. I have carefully considered   the submission   by both parties, and the rival affidavits.
8. With respect to the applicant’s compliance to Order 42 rule 6 of the CPR: The application was brought   in good   time, I am not persuaded   that there would be substantial   loss, and the court is empowered to direct he applicant to provide security.
9. In addition, the record shows that the Defendant/Applicant did not lead any     evidence in the subordinate court and as a successful   litigant - deserves part of the fruit of the judgement. This court has the obligation to balance the two competing interests.
10. In the circumstances the following orders issue
11. A. stay of execution is granted pending   the   hearing and determination    of the appeal on condition that ½   the awarded sum be released to Plaintiff within 30 days hereof.
12. The other ½ be   secured by bank guarantee within 30 days hereof. 
13. In default the stay will lapse, the application will stand   dismissed with costs to Respondent.
14. In any other circumstance, costs of the application to the Respondent.
15. The applicant to file and serve the Record of Appeal within 30 days hereof.
16. Mention before the Deputy Registrar for compliance with (v) above, and a date for directions before the Judge.

Dated and signed this 12^th day of April, 2024.

Delivered, this 15^th day of April, 2024 due system downtime on 12/4/2024