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JudgmentJOSEPH KYALO MWILU VS DANIEL MUTINDA MUNYWOKI AlIas DANIEL MUTINDA MUNYOKI5 min read

JOSEPH KYALO MWILU VS DANIEL MUTINDA MUNYWOKI AlIas DANIEL MUTINDA MUNYOKI

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


  1. The Notice of Motion before me is dated 4th December 2023 and brought under section 3A, 79G and 95 of the Civil Procedure Act (Cap 21), Order 22 Rule 22, Order 42 Rule 4, 6 and 7 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) seeking the following orders:
  2. That this application be certified urgent, service be dispensed with thereof and the same be heard ex parte in the first instance.
  3. That this Honourable court be pleased to order a stay of execution of the judgment in Kilungu  civil suit no. 168 of 2022 delivered by the Honourable F. Makoyo Principal Magistrate,

on 2nd of November, 2023 pending the hearing and determination of this application.

  1. That this Honourable court be pleased to order a stay of execution of the judgment in Kilungu Civil Suit no. 168 of 2022 delivered by the Honourable F. Makoyo Principal Magistrate, on 2nd November , 2023 pending the hearing and determination of this appeal.
  2. That the application be heard inter partes on such date and time as this Honorable court may direct.
  3. That as a condition for stay of execution pending the hearing and determination of this appeal, the applicants/appellants be and is hereby ordered to provide/issue security for the entire decretal sum/amount in the form of a bank guarantee to be issued by Family Bank Limited.
  4. That costs of this application abide the outcome of the appeal.
  5. The grounds for the application as laid out on the face of the application and the Affidavit of Joseph Kyalo Mwilu are inter alia:
  6. That judgment herein was delivered on 02/11/2023 and the respondent was awarded as follows:
  • Liability 100%
  • General Damages 230,000/=
  • Special Damages 7,100/= plus costs and interest
  1. That appellants/applicants being aggrieved and dissatisfied with the said judgment particularly on quantum of damages and liability have preferred an appeal.
  2. That the lower court magistrate did not consider the defendant’s evidence on liability and our submissions on quantum.
  3. That the appellant/applicants are ready, able and willing to provide security for the entire decretal sum in the orm of a Bank Guarantee to be issued by Family Bank Limited which is a reputable bank in Kenya.
  4. That to facilitate the issuance of the said Bank Guarantee as security, the appellant’s insurer, M/s Directline Assurance Company, have a long standing agreement with Family Bank Limited, a copy of which is annexed to the supporting affidavit hereto, in which the said bank has agreed to provide such security pending the hearing and determination of this appeal.
  5. That the appellants are reasonably and justifiably apprehensive that if any part payments are ordered to be made to the respondents as a condition for stay of execution pending the hearing and determination of this appeal, then such payments will be utilized and alienated by the respondent and recovery of the same will be arduous in the event that his appeal on the issue of liability succeeds.
  6. Annexed to the application is the judgment in Kilungu PMCC E168/2022 – plaintiff was a passenger in motor vehicle registration No. KCY 558H when the accident happened.
  7. The application is opposed vide replying affidavit of Daniel Mutinda Munywoki alias Daniel Mutinda Munywoki  on among grounds that:
  8. That the applicant’s alleged insurance is not a party to this suit thus the appellant cannot be heard misleading the curt to allow him use an alleged Bank Guarantee not issued to him. As advised by his advocates, he is not privy to it thus cannot be enforced to him.
  9. That he has been advised by his advocates which advise he verily believe to be true that:
  10. The only time a bank guarantee allegedly issues any insurance can be used is in a declaratory suit. However, the suit from which the appeal herein lies was not a declaratory suit but a primary one.
  11. A bank guarantee is not a security as its enforcement must always be through a fresh suit thus not readily available for money judgments.
  12. That he cannot enforce the alleged bank guarantee against third parties who are not parties to this case.
  13. The alleged bank guarantee has been used by Directline Assurance Company Limited in the entire Republic of Kenya and the applicant has not provided a schedule of all matters where the same has been used and the residual balance available after such and previous court guarantees to existing court decrees and judgment. In short, the same must have been exhausted by other judgments.
  14. That he is a man of means and the sums are very little which in the unlikely event that the appeal succeeds, he can be able to refund the same.
  15. That the alleged bank guarantee expires in 5 months, that is by 14/6/2024. Thus, if the appeal will not have been determined by then the same will be rendered unenforceable.
  16. Parties proceeded by way of written submissions.
  17. For the applicant it is argued that the application was filed in time, they stand to suffer substantial loss and they have offered security.
  18. For the respondent it is submitted – the application was filed late – one month, four days, the security offered is insufficient and no evidence the applicant will suffer substantial loss. That theapplicant does not deserve the exercise of the discretion this court because he has come to court with dirty hands  without any explanation why the application was filed late.
  19. I have considered the application, the submissions and the lower court judgment.
  20. The respondent was a passenger in the accident motor vehicle so it is not clear how liability would be contested.
  21. The application was filed on 6th December 2023 and the delay of one month in filing the application remains unexplained as judgment was delivered on 02/10/2023. However it is not inordinate
  22. The applicant security offered by the respondent is unacceptable. on the grounds given by the respondent.
  23. To balance the right of the applicant to the appeal and the respondent to fruits of his judgment I allow the application on the following grounds. 
  24. The application for say of execution pending appeal is allowed on the following conditions ;
  25. The applicant to pay to the respondent ¾ of the decretal sum, and to deposit the balance in court within 30 days hereof.
  26. In default of the stay of execution will lapse automatically,  the application will stand dismissed with costs to the respondent.
  27. The applicant to file the Record of appeal within 30 days hereof and the matter be mentioned before the DR for compliance on the filing and service of the ROA on 19th June 2024.
  28. Orders Accordingly

Dated signed and delivered virtually on 17th May 2024.           


    JOSEPH KYALO MWILU VS DANIEL MUTINDA MUNYWOKI AlIas DANIEL MUTINDA MUNYOKI JOSEPH KYALO MWILU VS DANIEL MUTINDA MUNYWOKI AlIas DANIEL MUTINDA MUNYOKI