NICHOLAS MBUKA AND ALEX MAKAU MUKONZA VS DAINA MWIHAKI MUKONZA

RULING

What is before me is the Notice of Motion dated 22^nd April 2022 brought Under section 3A, 79G and 95 of the Civil Procedure Act Cap 21, Order 22 Rule 22, Order 42 Rule 6, 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.

It seeks orders

1. That this application be certified urgent, service be dispensed with thereof and the same be heard ex parte in the first instance.
2. That this Honourable Court be pleased to order a stay of execution of the Judgment/Decree delivered on 11^th April, 2023 by Honourable L.K Mwendwa (P.M) sitting at Tawa in Civil Suit No. 35 of 2020 pending the hearing and determination of this application.
3. That this Honourable Court be pleased to stay the execution of the judgment/decree delivered on 11^th April 2023 by Honourable L.K Mwendwa (P.M) sitting at Tawa in Civil Suit No. 35 of 2020 pending the hearing and determination of the appellant’s appeal filed at the High Court of Kenya at Makueni.
4. That this Honourable Court allow the applicants to furnish the court with security in the form of a bank guarantee from a reputable bank pending the full hearing and determination of this appeal.
5. That the application be heard inter parties on such date and time as this honourable court may direct.
6. That the costs of this application abide the outcome of the appeal.

The grounds as set out on its face include that

1. Judgment herein was delivered on the 11^th April 2023 and the 30 days stay of execution granted by the Honourable court are in the verge of lapsing.
2. The honourable court entered judgment against the appellant in favour of the respondent and held the appellant 100% and the respondent was awarded general damages Kshs. 700,000/=; special damages Kshs.8650/= plus costs and interest at court rates.
3. 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 appellant/applicant and if the appeal is successful, he might not be able to recover the same from the respondent.

The application is supported by the affidavit and annexures therewith of Alex Makau Mukonza wherein the grounds are reiterated.

The applicant has filed this appeal on the following grounds

1. The learned magistrate erred in fact and in law in finding that the respondent was entitled to general damages of Kshs.700,000/=.
2. 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.
3. The learned magistrate erred in fact and in law in failing to consider the appellant’s’ evidence on quantum.
4. The learned magistrate erred in fact and in law in failing to consider conventional awards in cases of similar nature

It is opposed through the replying affidavit of Diana Mwihaki Karigi’s who depones inter alia :

• That the appellants have not demonstrated that they shall be unable to recover the decretal sum and costs paid to me in the unlikely event that their appeal succeeds.
• That the appellants have not expounded on any security they shall give to be sufficient and equivalent to the judgment awards before they may be granted stay of execution pending hearing and determination of their intended appeal.
• That in the event that the appellant’s’ present application is allowed it should be conditional on furnishing an advance and sufficient security for costs to her through money deposit in a joint interest-earning account or court deposit as opposed to a bank guarantee that shall be manipulated and/or interfered with by the appellants at any time.

The parties filed written submissions which I have considered.

It is submitted for the respondent that in the event that the applicants are granted stay of execution they should provide as security by paying two-thirds of the decretal sum to the respondent and then the remaining one-third to be deposited into a joint interest earning account in the names of the parties’ advocates on record. This is on the ground that the appeal is not challenging liability and therefore at the end of the day the appellants will be mandated to pay damages to the respondent.

The Respondent cites Nobel Trading Co. Ltd & 2 Others v Peter Odhiambo Marega [2022] eKLR where the court ordered that part of the judgment/decretal award be paid out and then the balance to be secured through a bank deposit. The applicant however prefers that the remaining one-third to be secured in a joint-interest earning bank account as was decided in Clement Wakari Njoroge v Daniel Mwangi Wahome (suing as the legal representative of the estate of Julia Wamaitha Mwangi) (2022) e KLR where it was stated:

19 … I accordingly allow the application on condition that half of the decretal sum is paid to the respondent within one month from the date hereof and the balance be placed in a joint interest earning account in the names of the respective advocates for the parties.

The respondent has taken the middle ground which ought to be affirmed.

The applicant is not disputing liability. Hence the issue is whether the application falls within the threshold of the requirements for the stay order sought.

This court is required to balance the interest of the appellant to pursue the appeal and the respondent to enjoy the fruits of their judgment.

the judgment of the subordinate court was not attached to the application to give the court of an idea of the proposals made in the subordinate court.

In the circumstances I allow the application for stay pending appeal  on the following conditions;

a. half the decretal sum be paid to the respondent within 30 days hereof and the other half be deposited in court within 30 days hereof.

b. in default the stay will lapse automatically and the application will stand dismissed with costs to the respondent

c. the record of appeal be filed within 30 days hereof, mention on 5^th June before the DR for compliance

d. Costs of the application be borne by the applicant in nay event

Dated, signed and delivered this 2^nd May 2024