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JudgmentJOHN NGUGI GATHURA AND JOHN NJOROGE GITUTHI VS EUNICE MBULA MUTUA6 min read

JOHN NGUGI GATHURA AND JOHN NJOROGE GITUTHI VS EUNICE MBULA MUTUA

High Court at Makueni High Court · · Matheka, Teresia Mumbua


RULING

  1. What is before me is the Notice of Motion dated 21st August 2022 brought under Order 21 Rule 1B, Order 22 Rule 22, Order 40 Rule 6, Order 51 Rule 1 of the Civil Procedure Rules, section 1A, 1B and 3A of the Civil Procedure Act, Article 159(2) (a) & (d) of the Constitution of Kenya, 2010 and all other enabling provisions of the law), seeking the following orders: -
  2. Spent
  3. Spent
  4. Spent
  5. That this Honourable court be pleased to grant a stay of execution of the judgment and/or decree issued by Honourable J.D Karani Senior Principal Magistrate on the 26th July 2023., pending the full hearing and determination of this appeal in Makueni.
  6. That this Honourable court allow the applicant to furnish the court with security in the form of a ban guarantee from the Family bank.
  7. The grounds for the application are inter alia:-
  8. That judgment herein was entered on 26th July, 2023 and the appellants were found to be 100% liable. Respondent was awarded Kshs. 200,000/= general damages and Kshs.3050/= for special damages with costs and interests.
  9. The appellants being dissatisfied with the said judgment have preferred an appeal on quantum and filed memorandum of appeal in Makueni.
  10. That the judgment is substantial amount and the appellants/applicants are apprehensive that if the respondent is paid he may deal with the same in a manner prejudicial to the appellants/applicants and if the appeal is successful, he might not be able to recover the same from the plaintiff/respondent.
  11. Unless stay of execution is granted, and the respondent levy and/or executes the said judgment of 26th July 2022 the appellants/applicants appeal will be rendered nugatory and the appellant/applicant will suffer irreparable loss and damage.
  12. The applicants/appellant’s insurance is ready, willing and able to furnish the court with a bank guarantee as security to the court.
  13. The application is supported by the affidavit of John Njoroge Gituthi the registered owner of motor vehicle registration NO. KCU 008Z and the annexures therewith.
  14. The application is opposed through the affidavit of Faith Mutio Mutuku – advocate, who has the conduct of the matter for the respondent.
  15. The grounds in opposition include;
  16. That the respondent sustained cut wounds on the right lower eye lid, injuries of the right eye, painful shoulder joints, swollen and painful left hip and ankle, blunt abdominal injuries and bruises on the right leg and knee region.
  17. That the respondent was awarded Kshs. 200,000/= which is a very reasonable for multiple soft tissue injuries, as such the applicants have no arguable appeal before this court.
  18. That since judgment against the appellant is a money decree, in the circumstances, it would only be fair and just that the security to be deposited should be in form of money and not a bank guarantee.
  19. That a bank guarantee offered by the appellant’s insurer is not sufficient security for the performance of the decree of this Honourable court, the bank guarantee is not executed for this matter, the same has expired, it does not relate to this matter and not signed by the bank. Lastly the bank guarantee has been offered by family bank who are not parties to this suit and has been taken out by a company not a party to this suit.
  20. That the applicants have not offered to show how the appeal will be rendered nugatory by not granting the orders sought.  It is not enough to state that the appeal will be rendered nugatory.
  21. Parties filed written submissions which I have read.
  22. The only issue for determination is whether the application meets the requirements of Order 42 Rule 6 of the Civil Procedure Rule.
  23. It is argued for the appellants that they have an arguable appeal as per their Memorandum of appeal where they contend: -
  24. That the learned trial magistrate erred in law and fact in finding the defendants/appellants 100% liable for the accident.
  25. That the learned  trial magistrate erred in fact and in law in finding that the respondent was entitled to general damages of Kshs.200,000/= special damages of Kshs.3050/= plus costs and interests of the suit for the injuries suffered which award is exorbitantly high based on the injuries sustained.
  26. That the learned trial magistrate erred and misdirected herself as to the exact nature of the respondent’s injuries and therefore erred in law in her assessment of damages specifically quantum awardable to the respondent which was manifestly excessive.
  27. That the learned trial magistrate grossly misdirected herself in treating the evidence presented before her on quantum and consequently coming to wrong conclusion on the same;
  28. That the learned trial magistrate erred in awarding a sum in respect of future medical expenses which was inordinately high in the circumstance was excessive in the circumstances occasioning miscarriage of justice; and
  29. That the learned trial magistrate failed to adequately evaluate the evidence provided both on quantum thereby arrived at a decision unsustainable in law.
  30. It is submitted that the amount involved is substantial, appeal was filed without unreasonable delay and that they are ready to furnish security.
  31. For the respondent it is argued that the respondent has not offered sufficient security because the bank guarantee offered is not sufficient; no evidence of substantial loss.
  32. It is also submitted that should the court be inclined to allow the application, then it should follow the footsteps in Nancy Nduta Kiarie & Another –vs- Roseline Kimursoi [2019] eKLR where the court observed :

2.“The application is premised on grounds that: the learned trial magistrate Hon. Sambu delivered judgment on 8th August, 2018 where he awarded the respondent Kshs. 401,840/=

4. In response, the respondent swore a replying affidavit where she deponed that the application which is not made in good faith is intended to delay payments in the matter and to derail her from enjoying fruits of the judgment. That it is not in dispute that an accident occurred and parties entered consent on liability. But she stated that should the application be allowed the court should consider ordering the applicants to pay her half the decretal sum.

That the court proceeded to hold:

12. Therefore, I grant stay of execution on condition that the applicants pay the respondent Kshs. 200,000/= being part of the decretal sum and the outstanding balance shall be deposited in a joint earning account to be held by both advocates of the parties at a reputable financial institution within twenty-one (21) days from the date of this ruling in dealt execution to proceed.

  1. I have carefully considered the rival affidavits and all the submissions: - It is noted that the application was filed within time ; that the security offered is insufficient but the court has discretion to direct sufficient security be deposited; that there is an olive branch offered by the respondent that a stay can be granted if the appellant  pays  part of  the decretal sum, In view of these I am inclined to grant the following orders:
  2. The application for stay of execution pending the hearing and determination of the appeal is allowed on condition that: -
  3. Half of the decretal sum is paid to the respondent within 30 days hereof.
  4. The other half of the decretal sum is deposited in a joint interest earning account in the names of the advocates for the parties within 30 days hereof.
  5. The Record of Appeal be filed within 30 days hereof.
  6. In default of (1) and (2) the stay to lapse automatically, the application will stand dismissed with costs to the respondent.
  7. Mention on 19th June 2024 before the Deputy Registrar for compliance within (3)
  8. Orders accordingly

Dated, signed and delivered virtually on 17th May 2024

……………………………………………………………

Mumbua T Matheka

Judge



    Nb: paragraphing distorted by the system

    JOHN NGUGI GATHURA AND JOHN NJOROGE GITUTHI VS EUNICE MBULA MUTUA JOHN NGUGI GATHURA AND JOHN NJOROGE GITUTHI VS EUNICE MBULA MUTUA