RULING
1) The application before me is the notice of motion dated 23/10/2023 seeking inter alia, stay of execution of the judgment and decree of the subordinate court Tawa SPMCC 112/2022 of 31/8/2023 pending the hearing and determination of the appeal herein.
2) The main ground for the application is that the learned trial court did not consider the appellant’s evidence on quantum and found the respondents - on liability - 100 % and quantum of damages Kshs. 200,000.
3) The application is supported by the affidavit sworn by Peter Mutinda - the appellant/applicant on 23/10/2023.
4) A replying affidavit opposing the application sworn by Evans Wambua - 1st respondent, sworn on 27/11/2023 - on the ground that the application does not comply with order 42 rule 6 (2) (b) of the Civil Procedure Code.
5) That should the court consider allowing the application, then the applicant to release part of the funds to the applicant, and deposit the balance in a joint interest earning account - otherwise the application ought to be dismissed.
6) Let me just point out - that this ruling has been delayed because since 18/3/2023 when the file was before me for direction, it remained for mention before Deputy Registrar for compliance and came back on 14/11/2024 by which time the applicant had not filed their submissions, then I proceeded on leave - and matter was mentioned before Deputy Registrar on 27/11/2024 when date of 31/3/2025 was fixed for ruling.
7) Having considered the application – I checked CTs for the submissions. I only found the submissions of the respondents dated 18/4/2024. I did not find any submission by the applicant.
8) The only issue on the appeal is quantum of damages. The judgment of the subordinate court shows how the trial court arrived at its award.
9) In the circumstances - I allow the application on the following conditions - that there be stay of execution pending the hearing and determination of the appeal herein.
10) That the applicant do pay the respondents the sum of Kshs. 150,000 within 30 days, hereof.
11) The balance of the decretal sum be deposited in a joint interest earning account in the names of the Advocates within 30 days , hereof.
12) The Record of appeal be filed and served within 30 days, hereof.
13) In default - the application will stand dismissed with costs, the stay will lapse accordingly.
Dated and signed and delivered virtually this 4th April 2025
Mumbua T Matheka
Judge
Odero holding brief for Mutua Makau for Respondent
N/A for applicant
Chrispol Court Assistant