Ruling
1. The learned trial magistrate in Makindu CMCC E094 of 2021 delivered judgment on 29/02/2023. The appellants were dissatisfied and they filed this appeal – together with Notice of Motion dated 22/5/2024 seeking:- 1) Spent
2) Spent
3) That this honourable court be pleased to order stay of execution of the judgment delivered on 29/2/2024 in Makindu CMCC E094 of 2021 together with the decree and all consequential orders in this suit pending the full hearing and final determination of this appeal.
4) That the costs of this application be provided for and/or abide the outcome of the appeal.
2. The grounds for the application are set out on its face and the supporting affidavit sworn by Josephat Mulandi Mwilu – 1st applicant on 22/5/2024.
3. The grounds are inter alia that:
a) That judgment of the trial court was delivered on 29/2/2024 finding the appellant 10% liable and awarding general damages of Kshs.131,589/= plus costs and interests to the respondent.
b) That on the same date, 30 days stay of execution was granted in favour of the appellant.
c) That the 30 days stay initially granted have expired and the appellant is apprehensive that the respondent will commence.
d) That the respondent is a person of unknown means hence he applicant is apprehensive that if the decretal sum is paid out, the respondent may deal with the same in a manner prejudicial to the appellant and the appeal would be rendered nugatory.
e) That the appellant/applicant is ready, willing and able to furnish such reasonable security as the court may deem fit to order.
f) That the application has been brought without unreasonable delay in the circumstances.
g) That the applicants have a good and arguable appeal with high chances of success.
4. On 26/06/2024 counsel for respondent told the court they had filed and searched their response. I have searched the court file and CTS I have not seen the response.
5. Parties agreed, through their respective counsel Mr. Mulyungi for applicants and Ms. Kasina for respondent to file written submissions.
6. I have carefully considered the application, the affidavit in support and the submissions.
7. Is the application for stay of execution pending appeal tenable?
8. I have considered the application, rival affidavits and the submissions.
9. The applicant filed Memorandum of appeal contending:
1) That the learned magistrate erred in fact and in law by failing to consider the evidence on record driver on liability hence finding the defendants wholly liable for the accident.
2) That the learned magistrate erred in law and in fact by failing to consider and/or completely disregarding the defendants submissions on liability hence reaching at an erroneous conclusion that the defendant was wholly liable for the accident.
3) That the learned trial magistrate erred in law and fact by failing to consider and appreciate the nature of injuries suffered by the respondent herein and awarding damages that were too high and incomparable to the injuries sustained.
4) That the learned magistrate erred in law and fact by failing to appreciate the totality of the evidence before him and the submissions on record on liability and quantum of damages.
5) That the learned magistrate erred in law and fact by failing to apply the principles applicable in award of damages and comparable award made for similar injuries.
Seeking that the court re-evaluates the evidence on record and makes it our finding on quantum and liability.
The applicant did not annex the judgment of the subordinate court.
10. The applicant relies on Order 42 Rule 6 and the following cases;
- Centrury Oil Trading Co. Ltd vs Kenya Still Ltd Nairobi Milimani HC MSA) NO. 1561 of 2007
- National Industrial Credit Bank Ltd vs Aquinas Wasike
(I note these cases have no citations)
11. It is however noteworthy that the applicant cites the respondent’s replying affidavit sworn on 5/6/2024
The respondent’s counsel does not clearly state or demonstrate that the respondent is of good financial standing as to be able to have the money recovered from him if the appeal was successful. Rather, he requires the applicants to place material before the court to show the loss likely to be suffered.
12. The court is urged to find that the application has merit and to allow the applicant to put in a bank guarantee as security as was stated in Shanzu Beach Resort Ltd vs Crown Marble Ltd & Quartz Ltd [2022] e KLR.
13. In the submission the respondent states: -
That the applicant can be granted stay of execution on condition that the applicant do pay half of the decretal sum to the respondent and deposit the other half in a joint interest earning account in the names of both advocates on record.
14. The respondent relies on :
Edward Kamau & Another vs Hannah Mukui Gichuki Misc. No. 78 of 2015. Where it was held that courts need to balance the rights of both parties: that the right of the appellant to the appeal is not rendered nugatory and the right of the respondent who has a lawful judgment to enjoy the fruits of their judgment. And in addition that the respondent ought not to be discriminated upon for being of unknown financial means, as that would be a violation of the Constitutional command that justice shall be done to all irrespective of status.
15. From the foregoing it is evident that the respondent does not have serious opposition to the application so long as the court does balance the applicant’s right to an appeal and the respondent’s right to enjoy the fruits of a regularly obtained judgment.
16. In the circumstances, I find the proposal by the respondent befitting this matter. The applicant has expressed fears about the ability of the applicant to refund the money should the appeal succeed. This in my view is the risk that must be borne in balancing the rights of both parties as it can be said that the security the applicant wishes to give is also insufficient.
17. All in all I find that the orders that call for pronouncement:-
1) The application for stay pending appeal is granted.
2) Applicant to pay the applicant half of the decretal sum and to deposit the other half in court within 30 days hereof.
3) The applicant to file and serve the Record of Appeal within 30 days, hereof.
4) In default of any of the conditions the application will stand dismissed, the stay will lapse.
5) In that event, costs will be to the respondent.
6) Otherwise costs to abide the appeal.
Dated, signed and delivered via CTS this 28th day of March 2025
Mumbua T Matheka
Judge