1. Before me is the Notice of Motion dated 2/10/2023 brought under section 3A, 79G and 95 of the Civil Procedure Act, Order 22 Rule 22 Order 42 Rule 6, Order 50 Rule 6, Order 51 Rule 1 and 3 of the Civil Procedure Rules. The applicant seeks inter alia an order of stay of execution pending appeal of the judgment of Hon. Jalang’o SPM at Tawa MCCC 69 OF 2022 delivered on 31/8/2023; and that the applicant be allowed to furnish a bank guarantee as security.
2. In the judgment the trial court found in favour of the respondent general damages to the sum of Ksh. 200,000/=, special damages of Kshs. 7,100 and liability at 100%.
3. From the Memorandum of Appeal the challenge is against the quantum of damages.
4. The application is opposed by the respondent on the grounds that the applicant has not brought himself within the threshold of order 42 rule 6 of the CPR – other than filing the application in good time.
5. Parties filed submissions which I have considered.
6. I have also considered the rival affidavits.
7. The issue for determination is whether the orders sought in the application are merited.
8. The respondent has submitted that they would have no issue with the stay being granted if the applicant was directed to pay the respondent the ¾ of the award and the ¼ balance be deposited in a joint interest earning account.
9. In determining such applications, it has become the norm for the court to balance the compelling interests of the parties. The applicant ‘s right to an appeal and the respondents right to enjoy the fruits of their regularly obtained judgment where the circumstances allow.
10. In this case the appeal is purely on quantum –
11. I have perused the impugned judgment and the injuries that were sustained by the respondent, and it is evident that there is no serious opposition to the application.
12. There is also no attack on the award on liability.
13. Though it is not for the court to determine this at this level the court cannot pretend that it has not seen the Judgment, the injuries sustained by the respondent vis a vis the award of damages.
14. In the circumstances, it is fair that the applicant gets a stay and the respondent gets a bit of the fruits of his judgment. The following Orders issue:
1. Stay of execution is granted on condition that the sum of Ksh. 150,000/= be paid to the respondent within 30 days hereof. The balance of Ksh 50,000/= be deposited in court within 30 days hereof. In default the application will stand dismissed, and the stay order will lapse automatically.
2. The applicant to file and serve Record of Appeal in 30 days.
3. Mention before Deputy Registrar for compliance of (2) on the Record of Appeal.
Dated, signed and delivered on 8th day of July 2024
Mumbua T Matheka
Judge