MOHAMMED ABDALLA HASSAN VS WINFRED KAMANTHE MULINGE AND FELIX MELA MULINGE

RULING

1. The application before me is the Notice of Motion dated 6/2/2024 seeking: -
2. Spent
3. Spent
4. That this honourable court be pleased to order stay of execution of the judgment and decree in Makindu PMCC No. E237 of 2021, Winfred Kamanthe Mulinge (suing as the administrators of the estate of Dominic Mutunga Mela (deceased) –vs- Mohammed Abdalla Hassan and Sniper Star Limited, pending the hearing and determination of this appeal.
5. That the costs of this application be in the cause.
6. The grounds for the application are on its face and the affidavit in support sworn by Mohamed Abdalla Hassan- that

• On 15^th November, 2023 the subordinate court Hon. J. D. Karani, Resident Magistrate rendered its judgment against the appellant in Makindu PMCC No. E237 of 2021, Winfred Kamanthe Mulinge and Felix Mela Mulinge (suing as the Administrators of the estate of Dominic Mutunga Mela (deceased) –vs- Mohammed Abdalla Hassan and Sniper Star Limited.
• Aggrieved by the judgment of the lower court, the appellant filed this appeal on 7^th December, 2023.
• The appellant’s insurer is willing to tender such security as this honourable court may order for the due performance of the decree that may ultimately be binding upon the appellant.

1. He deponed that:

• He was informed by his advocates that the suit proceeded for hearing and on 15^th November, 2023, the court found him wholly liable in negligence and rendered its judgment against him as follows –
• Damages under the Law Reform Act Ksh. 120,000.00
• Loss of Dependency   Ksh. 4,107,648.00
• Special Damages  Ksh.      51,800.00

Total     Ksh. 4,279,448.00

• He believes that his appeal has high chances of success and he is apprehensive that unless this application is heard urgently on a priority basis and disposed of expeditiously, the respondent herein might proceed to execute against them.
• That he is apprehensive that they will suffer irreparable loss if the respondent proceeds in execution because such execution would render their appeal nugatory.
• That the application has been brought without undue delay and he prays that it be granted as prayed.

1. The application is opposed through the affidavit of Winfred Kamanthe Mulinge. The gist of the opposition is that the judgment was delivered on 15/11/2023, that during the trial the appellant had not called any evidence to controvert the plaintiff’s case in the subordinate court, hence the appeal has no chances of success.
2. Parties filed written submissions which I have considered.
3. For the applicant it was submitted that the application was grounded under Order 42, Rule 6(1) and (2) of the Criminal Procedure Rules 2010.
4. It is submitted that with respect to whether or not the applicant has established that failure to obtain the orders will lead to substantial loss, the applicant relies on Bungoma Hc. Misc. Appl 42/11 James Wangawa & Another –vs- Agnes Naliaka Cheseto – where the court stated that an applicant must establish that the execution of the judgment irreparably affects/negates the essential core of the applicant. That if the money is paid out to the respondent – they will not be able to refund it in the event that the appeal is successful. It is argued that other than the fear expressed the applicant has not established that requirement.
5. That judgment was delivered on 15/11/2023, the application was filed on 8/2/2024. It is the view of the applicant that is within reasonable time.
6. The applicant submits that the security offered is that the entire judgment sum be deposited in a joint interest earning account in the names of both advocates.
7. For the respondent it is submitted that on the decretal sum of Ksh. 4,505,434 the applicant is not disputing the sum of Ksh. 1,180,000/=.
8. That the application can be compromised in the following terms: -
9. The applicant pays respondent sum of Ksh. 1,180,000/= within 30 days.
10. The balance of Kshs. 3,325,434 be deposited in court.
11. The applicant be granted 60 days to file and serve record of appeal.
12. From the foregoing the issue is whether the applicant has established grounds to warrant the granting of the order for stay of execution.
13. I have carefully considered the submissions, the application and rival affidavit.
14. I have perused the memorandum of appeal filed on 7/12/2024.
15. It is evident to me that the only issue on appeal is with regard to the quantum of damages- The applicant contends
16. The learned magistrate erred in law and fact in finding that the applicable minimum wage was that of an Artisan (grade 1) instead of that of an ungraded artisan thereby applying a multiplicand of Ksh. 27,024 instead of Ksh. 13,975 for purposes of computing damages for loss of dependency.
17. The learned magistrate erred in law and fact in applying a multiplier of 19 years for a deceased who passed away at the age of 41 years.
18. The learned magistrate showed extreme prejudice by totally ignoring the appellant’s submissions on issues of law and evidence and thereby made an inordinate high award of damages.
19. It is evident from this that the liability of the defendants will not be in issue.
20. It is also evident that the applicant would not have any issue with the quantum of damages if a multiplicand of Ksh. 13,975 was applied
21. In addition, though the multiplier of 19 years the appellant had submitted that they would have preferred a multiplier of 10 years and loss of dependency at 1/3.
22. In the circumstances, and in the interests of justice this set of circumstances commends to me the following.
23. That a stay of execution is not contested if the uncontested sum of damages is paid to the respondent. That sum would be arrived at by putting together all numbers conceded by the applicant: 13,975 x10 x12 x 1/3. This in my view would be in the spirit of the provisions of Article 159 (2) (c) of the constitution where the court is required to encourage parties to reach settlements through AJS of their choice.
24. In fact, from the tone of the application and the submissions by both counsel – this is an appeal that parties could compromise under Article 159(2)(c ) of the Constitution – through AJS and the parties are encouraged to do so.
25. In the meantime, the respondent has a judgment where liability was contested but is not being contested on appeal – hence the respondent is entitled to the enjoyment of the fruits of their judgment – while the appellant has the right to their appeal.
26. To balance both and based on what I have gathered from the submissions before me, and the submissions in the subordinate court. The following orders issue: –
27. Stay of execution is granted pending the hearing and determination of the appeal.
28. The appellant to pay to the respondent loss of dependency in the following terms: -
29. 13,975x10x12x2/3 = 1,118,000/= within 45 days hereof.
30. The balance of the judgment sum be deposited in court within 45 days.
31. In default of (i) and (ii) the stay to lapse automatically, the application to stand dismissed with costs to the respondents.
32. The Record of Appeal be filed and served within 45 days hereof
33. Mention before the Deputy Registrar on 27^th August 2024 to confirm compliance with (iv) above.

                3. Orders accordingly

Dated, signed and delivered virtually on 21/6/ 2024

Mumbua T Matheka

Judge

Present: Mr. Maina for the appellant, Ms. Elizabeth court Assistant

NB paragraphing distorted by system