Ruling
1. On 2/8/2023 the learned trial magistrate Hon. F. Makoyo – Principal Magistrate delivered his judgment in Kilungu MCCC285 of 2022.
2. The court found the defendant/applicant 100% liable for the accident in which plaintiff/respondent who was a passenger sustained the following injuries:
a) Mild soft tissue injuries of the hand;
b) Bilateral shoulder soft tissue injuries;
c) Bilateral lower limb soft tissue injuries
d) Back/trunk soft tissue injuries.
3. The magistrate also awarded Kshs. 180,000/= general damages for the said injuries.
4. The appellant filed appeal contending that :
1) The learned magistrate erred in fact and in law in finding that the respondent was entitled to liability apportionment of 100%
2) The learned magistrate erred in fact and in law in finding that the respondent was entitled to general damages of Kshs.180,000/= and special damages of Kshs.5,550/=.
3) The learned magistrate erred in fact and in law in finding that the respondent was entitled to general damages that were too high in view of the evidence tendered. The same was too high and the same is not justified.
4) The learned magistrate erred in fact and in law in failing to consider the appellants’ evidence and submissions.
5) The learned magistrate erred in fact and in law in failing to consider conventional awards in cases of similar nature.
Seeking orders that:
a) This appeal be allowed with costs.
b) The judgment delivered on 02/08/2023 by the Honourable F. Makoyo (PM) in Kilungu in PMCC 285 of 2022, be set aside and the award made therein be re-assessed.
c) That cost of this appeal be borne by the respondent.
5. The applicant/appellant filed Notice of Motion on 31/8/2023 seeking inter alia:
1) That this honourable court be pleased to grant a stay of execution of the judgment and/or decree issued by honourable F. Makoyo, Principal Magistrate, in Kilungu PMCC No. 285 of 2022 dated and delivered on 02/08/2023 pending the full hearing and determination of this appeal.
2) That this honourable court allow the applicant to furnish the court with security in the form of a Bank Guarantee from the Family Bank.
6. The application is supported by grounds on its face and the supporting affidavit of Julius M. Muia sworn on 28/8/2023. The grounds for the application are inter alia:-
a) The appellants being dissatisfied with the said judgment have preferred an appeal on liability and quantum and filed Memorandum of Appeal in Makueni.
b) That the appellants’ appeal has high chances of success.
c) That the judgment is of substantial amount and the appellant/applicant is 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.
d) That the respondent has not disclosed nor furnished the court with any documentary evidence to prove his financial standing.
e) The applicant/appellant’s insurance is ready, willing and able to furnish the court with a bank guarantee as security to the court.
f) This application is made in good faith and will not occasion any prejudice to the plaintiff/respondent.
g) That the application has been brought without unreasonable or undue delay.
7. The application is opposed vide the replying affidavit of Maria Wangari Mburu – to the effect that:
1) That the applicant’s application is an afterthought with the sole intention and/or purpose of delaying the enjoyment of the fruit of the judgment entered in my favour.
2) That the applicant’s application does not raise triable issues which ought to be canvassed before this Honourable court in any way.
3) That the courts discretion should not be exercised in favour of the applicant herein for the following reasons:
a) The applicant has failed to present sufficient and/or any evidence to demonstrate to this honourable court the progress on the appeal.
b) The applicant has not demonstrated the loss it will suffer should the orders being sought are not granted.
c) The applicant has not demonstrated their inability to pay the decretal sum should the appeal be successful.
8. Parties filed written submissions which I have considered.
9. Order 42 Rule 6 provides for the conditions upon which the court will grant stay of execution pending appeal. Courts have however developed jurisprudence to the effect that those conditions are not cast in stone and the justice of the case in these applications calls for the balance of the right of appeal of the appellant, and enjoyment of the fruits of her judgment on the part of the respondent, without undue emphasis on the procedural technicalities.
10. I note the submissions by counsel for respondent to the effect that she has a valid judgment and should therefore not be denied the fruits of such judgment. The court is urged to balance the interest of both parties, by granting stay of execution on condition that half the decretal sum is released to her and the the other half deposited in an interest earning account held in the joint names of counsels on record within 30 days and in default thereof execution to issue.
11. In the exercise of that balance I allow the application for stay of execution on condition that the applicant pays to the respondent half the decretal sum and deposits the balance in a joint interest earning account in the names of both counsel, both to be done within 30 days hereof. The applicant to file the Record of Appeal in 30 days. In default of any of the conditions the application will stand dismissed, the stay will lapse and execution to issue.
Dated, signed and delivered via CTS this 28th day of March 2025
Mumbua T Matheka
Judge