[2011] KEHC 11 (KLR)
The court found that the appellant had demonstrated sufficient cause for the grant of a stay of execution pending appeal, particularly as the appeal was on the issue of liability and the appellant would suffer loss if execution proceeded and he succeeded on appeal. The court exercised its discretion to grant the...
Source-derived case information.
- Citation
- [2011] KEHC 11 (KLR)
- Parties
- Appellant: Anthony Muikia Gichuru; Respondent: Irene Wanjiku Kahunyo; Respondent: Maxwell Kimachui; Respondent: Peter Ngugi Njeru
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 337 of 2011
- Procedural Posture
- Civil Appeal / Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution granted.
- Legal Topics
- Motor Vehicle Accident, Liability of Parties, Stay of Execution, Decretal Sum, Passenger Injury
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Anthony Muikia Gichuru
Appellant
Irene Wanjiku Kahunyo
Respondent
Maxwell Kimachui
Respondent
Peter Ngugi Njeru
Respondent
Procedural Posture
Civil Appeal / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to a stay of execution of the subordinate court's judgment pending appeal.
- 2 Whether the appellant is liable for the accident as determined by the trial court.
- 3 Whether payment of the decretal sum should be stayed or secured pending the outcome of the appeal.
Ratio Decidendi
The court found that the appellant had demonstrated sufficient cause for the grant of a stay of execution pending appeal, particularly as the appeal was on the issue of liability and the appellant would suffer loss if execution proceeded and he succeeded on appeal. The court exercised its discretion to grant the stay, subject to the condition that the decretal sum be deposited in a joint interest-earning account in the names of the advocates for the parties, or in court if not done within 30 days. The court considered the interests of both parties and the need to secure the decretal sum pending the determination of the appeal.
Court Disposition
Application for stay of execution granted.
Orders
- Stay of execution of the subordinate court's judgment is granted pending appeal.
- The decretal sum to be deposited in a joint interest-earning account in the names of the advocates for the parties within 30 days.
Full Case Text
Judgment text and source record
72 paragraphs
Editorial Summary
1. Civil Appeal
2. Civil Practice and Procedure
3. Subject of Subordinate court case
TORT
3. 1 Running down cause.
3. 2 Passenger/female adult
3. 3 Trial court enters judgment in favour of original
plaintiff
3. 4 Original 3rd defendant Anthony Muikia Gichuru
files appeal on issue of liability only on
19th July 2011.
3. 5 Prays for stay of execution of the magistrate’s
judgment.
4. Application for stay of execution:
Notice of Motion 14th November 2011
4. 1 Appellant not liable for accident.
4. 2 Would suffer irreparable loss if
execution is carried out.
5. In reply:
5. 1 Half the decretal sum be paid to respondent
Original plaintiff pending appeal.
5. 2 Money decree
6. Held:
Application for stay of execution granted.
7. Case Law:
8. Advocates:
i) R.M. Kioko instructed by M/s Ndonye & Co Advocates for
appellant/original 3rd defendant
ii) J.N. Abuga instructed by J N Abuga& Co Advocates for 1st respondent/original plaintiff
iii) Wanjiku Nduati instructed by Wanjiku Maina & Co Advoctes for 2nd respondent/original 2nd defendant
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
CIVIL APPEAL NO. 337 OF 2011
ANTHONY MUIKIA GICHURU …………….……..........................................…….… APPELLANT/
ORIGINAL 3RD DEFENDANT
VERSUS
IRENE WANJIKU KAHUNYO……………………..................................……….. RESPONDENT/
ORIGINAL PLAINTIFF
MAXWELL KIMACHUI …………………….....................................………………. RESPONDENT/
ORIGINAL 1ST DEFENDANT
PETER NGUGI NJERU ……………..….................................………………..…. RESPONDENT/
ORIGINAL 2ND DEFENDANT
(Being an appeal from the judgment of Hon. I. Ireri (RM) delivered on 21st June 2011 in CMCC 305/09 at Limuru Court)
R U L I N G
Application for Stay of Execution
Dated 14th November 2011
I.INTRODUCTION
1. The original suit before the subordinate court arises out of TORT. A motor vehicle accident occurred in which Irene Wanjiku Kahunyo, a female adult was a fare paying passenger.
2. The Hon. Trial Magistrate court at Limuru awarded her damages as compensation; against the appellant/original 3rd defendant and the applicant herein together with two other respondents original defendant 1 & 2.
3. Being aggrieved, the appellant original 3rd defendant filed appeal to this High Court on 19th July 2011. By an application dated
14th November 2011, he prayed for stay of execution of the subordinate court’s judgment.
IIAPPLICATION 14TH NOVEMBER 2011
4. This application for stay of execution was brought after a previous order of stay of execution of 30 days had been issued by the subordinate courts.
5. It sought stay pending appeal. There has been a four months wait between the time of filing appeal. The applicant explained that this was due to the advocate attempting to review the application at the magistrate’s court but found the original file was not available.
6. In his submissions, he stated that the only issue that would be taken up is that of liability. The Hon. Trial Magistrate erred as such he should never have been found liable for the accident and at all.
7. This means if the appellate court upholds his argument on appeal, then he would not pay the decretal sum at all.
8. The application was opposed. The original plaintiff respondent No. 1 in this appeal prays that the half of the decretal sum be paid to her pending appeal. The balance be deposited in an interest earning account in the joint names of the advocate.
9. The compliance of or not, Order 1 r 21 Civil Procedure Rules was considered by the trial court and taken into account. The appellant is liable to pay the decretal sum with others.
10. The application before this court for stay of execution pending appeal has merits. The issue of liability is a matter sought to be appealed against. If the appellant is successful he would suffer loss.
11. The other respondents were not in court due to the issue of their insurance company which is under a moratorium.
12. I would grant the application for stay of execution. I order that the decretal sum be deposited in the joint interest earning account in the names of the two advocates. That in default of so doing within 30 days, the decretal sum be deposited to court.
DATED THIS 26TH DAY OF MARCH 2011 AT NAIROBI
M.A. ANG’AWA
JUDGE
Advocates:
i) R.M. Kioko instructed by M/s Ndonye & Co Advocates for
appellant/original 3rd defendant
ii) J.N. Abuga instructed by J N Abuga& Co Advocates for
1st respondent/original plaintiff
iii) Wanjiku Nduati instructed by Wanjiku Maina & Co Advoctes for
2nd respondent/original 2nd defendant