Skip to content
JudgmentJOSEPH MUTINDA MUTUNGA VS MESHACK WAMBUA KING'OO6 min read

JOSEPH MUTINDA MUTUNGA VS MESHACK WAMBUA KING'OO

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


RULING

  1. Before me is the Notice of Motion dated 30/10/2023 brought under sections 1A, 1B, 3, 3A, of the Civil Procedure Act Order 22 Order 42 Rule 6 of the Civil Procedure Code.
  2. The applicant calls for the exercise of the  inherent jurisdiction of this court to grant the orders inter alia:-
  3. That pending the hearing and determination of the appeal in MAKUENI HCCA NO. E090 OF 2023 JOSEPH MUTINDA MUTUNGA –VS- MESHACK WAMBUA KING’OO, this Honourable Court be pleased to grant a stay of execution of the judgment delivered by Hon. P.N Gesora on 4th October, 2023, the decree emanating thereof and all consequential proceedings therefrom.
  4. Such other and further protective orders as may be deemed just and expedient in the circumstances.
  5. The application is supported by the grounds on its face and the supporting affidavit of Joseph Mutinda Mutunga sworn on 30/10/2023.
  6. The grounds include that:-
  • The Hon. Mr. P.N Gesora delivered a judgment awarding the respondent Kshs. 800,000 being general damages, Kshs.15,800/= and costs of the suit.
  • If the stay of execution is not granted substantial loss may result to the appellant as once the said money is paid to the respondent, it may not be recoverable.
  • The appeal herein has a reasonable chance of success and if execution is carried out it will render the appeal nugatory.
  • There has been no delay in bringing this application.
  • The applicant has proffered very strong grounds of appeal showing that he has an arguable appeal.
  1. The applicant has annexed the Memorandum of Appeal, and the a copy of the judgment – the appeal being against both the apportionment of liability and quantum of damages.
  2. The application is opposed by the affidavit of Faith Mutio Mutuku sworn on 23/3/2023. She contends that there is no arguable appeal, that the applicant is not deserved of the orders sought and that there is no documentary evidence to support the alleged substantial loss. However, that should the court be inclined to grant the order of stay – that ¾ of the decretal sum be paid to the respondent and the balance be deposited in a joint interest earning account in the names of counsel.
  3. The respondent filed a further affidavit to confirm that they had a decree for Ksh. 927,485/=.
  4. Parties filed written submissions through respective counsel which I have considered.
  5. The issues for determination are whether the applicant has placed before court sufficient grounds to warrant the orders sought – in other words, whether there is compliance with Order 42 Rule 6 of the CPR.
  6. The applicant has added another issue – whether the responses by Faith Mutuku are incompetent and fatally defective. This is because, as counsel for the respondent, she ought not to swear to facts that are not known to her – on behalf of her client without her client’s exhibited authority – and that by so doing she was descending into the arena of conflict setting herself up as a witness. Two authorities are cited to support this proposition: - International Community of Women Living  with HIV Registered Trustees –vs Non-Governmental Organisation Co-Ordination Board & 2 Others: Teresia Otieno (Proposed Interested Party) [2019] e KLR.

Further that she had not demonstrated any specific authority from her client: See In the matter of the Estate of M’Magiri (deceased) [2005] e KLR, Magnolia PVT Limited vs Synermed Pharmaceuticals (K) Ltd [2018] e KLR, and Principal Secretary, State Department of Planning, Ministry of Devolution & Planning & Another vs- Peer O. Nyakundi & 68 Others [2020] e KLR.

  1. It is submitted that with respect to whether or not the applicant will suffer substantial loss, that it will be suffered where the judgment sum is paid yet the injuries of the respondent were not confirmed and the income of the respondent is unknown or unascertained. Further that the applicant is ready, willing and able to abide by directions of the court on the issue of security. The court is referred to Benard Ontita Zebedee vs Julius Nyamwaga Onzere [2022] e KLR for the proposition  that where there is no guarantee that the respondent can refund the money – the request to release part of the money to the respondent and in Harit Sheth Advocate –vs Shamas Charania Court of Appeal 68 of 2008 for the proposition that the principle aim of the overriding  objective – the need to act justly,  to have regard for proportionality, to create level ground for all parties coming before the court and maintaining the equality of arms. Further on RWW vs EKW [2019] e KLR on the purpose of stay of execution order pending appeal – the court ought to allow for the exercise of the right of appeal, and the right of the successful litigant to enjoy the fruits of their judgment.
  2. For the respondent it is submitted that the security offered is insufficient – and there for non-compliance with the mandatory requirements of Orders 42 and 6- see Yegon v Rono (ELC Case No. 5 of 2016) (2023) e KLR. That being a money decree – the security must be in the form of money. See also Kassan Kanji Nhirani & Anor vs Jane Njeri Kimani & Anor [2020] e KLR. Further that as per Njenga vs Njeri & 2 Others [2023] e KLR -  that it is the duty of the applicant to establish that they will suffer substantial loss – see also Samvir Trustee Ltd v Guardian Bank Ltd [2007] e KLR. It is also argued that there is no arguable appeal. That the court can be persuaded by Njenga v Njeri above and allow the application on condition that the applicant pays ¾ of the decretal sum to the respondent.
  3. It is noteworthy that counsel for the respondent did not respond to the submission that she has no authority to swear the replying affidavit on behalf of her client or that an advocate cannot depose to contested issues on behalf of her client and that the affidavit is fatal to the response.
  4. I have considered the issue and evidently counsel did not demonstrate the requisite authority and in any event it is inappropriate for counsel to swear an affidavit on behalf of the client in circumstances that can turn them into a witness. While I would not go to the extent of striking out the affidavit, I will ignore what I consider to be contentious.
  5. With respect to the application, granting of an order for stay is discretionary, guided by Order 42 Rule 6 of the CPR. I stand on the side that reads those directions in view of the Constitution – on the equality of arms – and the court’s inherent jurisdiction to act in the interests of justice – justice calls for a balance between the 2 parties – the appellant and the respondent. In this case the applicant brought the application in good time, the applicant has submitted to this court’s power to order the giving of security – and on substantial loss – on balancing the interests of both parties. Having considered the facts placed before me – and the authorities cited to persuade me –
  6. I am persuaded that a stay of execution order is deserved – pending the hearing and determination of the appeal. The order is granted on condition that the applicant pays 1/3 of the judgment sum to the respondent, and the balance in a joint interest earning account in the names of counselor in court within 45 days herein. in default of which the stay order will lapse and the application will stand dismissed with costs.
  7. The Record of Appeal be filed and served within 45 days hereof.
  8. Mention before the the Deputy Registrar within 45 days here for  compliance with respect to the Record of Appeal.

Dated, signed and delivered this 26th  July 2024

Mumbua T Matheka

Judge

    JOSEPH MUTINDA MUTUNGA VS MESHACK WAMBUA KING'OO JOSEPH MUTINDA MUTUNGA VS MESHACK WAMBUA KING'OO