- On 26/10/2019 on road traffic accident occurred between motor vehicle registration no. KAH 612A and KBP 940V.
- The respondents were the plaintiffs in Kilungu PMCC 216 /2020, 217/2020 and 215/2020 in which they brought claims for general damages for pain and suffering for the injuries they sustained in the accident. The liability was settled in the test suit 214 /2020 at 80:20 in favour of the plaintiffs.
- The learned trial court upon considering the submissions on quantum made the following awards;
Kilungu PMCC 216/2020 - General damage - 700,000
HCCA E066/2023 Special damage - 8,100
708,100
Kilungu PMCC 217 /2020 - General damage - 250,000
HCCA E067/2023 Special damage - 5,600
255,600
Kilungu PMCC 215/2020 General damage - 230,000
HCCA E068/2023 Special damage - 5,600
235,600
Each less contribution plus costs and interest.
- The defendant was aggrieved and filed the appeals - basically on the grounds that the awards were too high, the magistrate failed to consider evidence and their submissions, in arriving at the awards.
- The defendant also filed a similar application in each file dated 21/8/2023 seeking stay of execution pending appeal.
- In the replying affidavit to the application counsel for the respondents did not oppose the application, instead proposing that pending the hearing and determination of the appeal the appellant;
- Pay a half of the judgment sum together with costs of the suit to the respondent within 30 days from the date of the order, and
- The balance be deposited in a joint- interest earning account in the names of both advocates within 30 days from the date of the order,
- In default of compliance with either of the above orders, the application be marked as dismissed with costs to the respondent and execution to issue without reference to court.
- The appellant’s counsel insisted he had no such instructions and proceeded to file written submissions.
- I have carefully considered the application in each of the three files and it is my view that the following orders will suffice;
- The application for stay pending appeal is allowed on the following conditions
- The appellant will pay each of the respondent ½ the decretal sum (the award in general damages) within 30 days hereof.
- The other ½ of the decretal sum (the award in general damages) will be deposited in a joint interest earning account of both Advocates - within 30 days hereof
- The record of appeal be filed and served within 30 days hereof.
- In default of (i) and (ii) the stay will automatically lapse and the application will stand dismissed with costs to the respondents.
- Otherwise the respondents will have costs of this application.
- Mention before the Deputy Registrar in 30 days hereof on 8th May 2024 confirm compliance with (iii) and for a date for directions in accordance with the diary of the court.
- The order to apply mutatis mutandis in HCCA 66/2023, 67/2023 & 68/2023
Orders accordingly