[2022] KEHC 15173 (KLR)

Dreamline Express Ltd & another v Mutwii (Civil Appeal E027 of 2021) [2022] KEHC 15173 (KLR) (8 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15173 (KLR)

Republic of Kenya

In the High Court at Makueni

Civil Appeal E027 of 2021

GMA Dulu, J

November 8, 2022

Between

Dreamline Express Ltd

1st Appellant

Dominic Sabii

2nd Appellant

and

Pauline Muthathi Mutwii

Respondent

Ruling

1. Before me is a Notice of Motion dated June 2, 2021 filed by the two appellants herein through counsel M/s Kimondo Gachoka & company under section 3A, 79G, and 95 of the Civil Procedure Act (Cap.21), and Order 22 Rule 22, Order 42 Rule 6, Order 50 Rule 6 and Order 51 Rules 1 and 2 of the Civil Procedure Rules, 2010.

2. The application has five (5) prayers, three (3) of which have been spent as follows – 1)(Spent)

2)(Spent)

3)That the court be pleased to stay the execution of the judgment/decree herein pending the hearing and determination of the appellant’s/applicant’s appeal filed in the High Court of Kenya at Makueni as Civil Appeal No. 27 of 2021.

4)(Spent)

5)That the costs of the application abide the outcome of the appeal.

3. The application has grounds on the face of the Notice of Motion that the trial court found 100% negligence against the appellants and awarded Kshs.220,000/= as general damages, and Kshs.1,950/= as special damages that the appellants had filed an appeal, and that if stay of execution is not granted the appeal will be rendered nugatory and the appellants will suffer substantial loss.

4. The application was filed with a supporting affidavit sworn on June 2, 2021 by Dominic Sabii the 2nd appellant/applicant who deponed that the application was filed without inordinate delay, that the appeal had high chances of success, and that the applicants were willing to offer security in the form of a bank guarantee.

5. The application has been opposed through a replying affidavit sworn on June 29, 2021 by Pauline Muthiani (should be Muthathi) Mutwii the respondent, in which it was deponed that there was no urgency in the matter as execution had not been commenced, that Grounds of Opposition had been filed and that the respondent opposes the application as she was capable of reimbursing the money, if the appeal was decided in favour of the appellants/applicants.

6. I note that Grounds of Opposition under Order 51 Rule 14(1) of the Civil Procedure Rules, were filed on July 6, 2021. The main ground of opposition, is that the supporting affidavit should be struck out as the deponent of the affidavit was not qualified to swear on the liquidity of the insurance company mentioned (Directline Assurance Company Ltd), as he did not work for that company.

7. The application was canvassed through filing of written submissions. In this regard, I have perused and considered the submissions filed by Kimondo Gachoka & company for the appellants/applicants and the submissions filed by Onyango Ndolo & company for the respondent.

8. This being an application for stay of execution of decree or judgment pending determination of appeal, it is governed by the provisions of Order 42 Rule 6(2) of the Civil Procedure Rules, which states as follows –6(2) No order for stay of execution shall be made under sub-rule (1) unless-a)The court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; andb)Such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.

9. With regard to whether the application was filed without unreasonable delay, I note that judgment was delivered on April 20, 2021 and stay of execution initially granted by the trial court for 30 days. This application was filed on June 2, 2021. It cannot be said therefore that there was unreasonable delay in filing the application. In my view, the counsel for the appellants/applicants was not indolent in acting in the matter. I find that there was no unreasonable delay in filing the application.

10. I note also that the respondent filed grounds of opposition to the application. In my view, the Grounds of Opposition do not go into the substance of the affidavit, and therefore are not a basis for striking out the supporting affidavit, nor striking out the application. In my view, even if the objected to paragraphs in the affidavit, even expunged, the other paragraphs can still stand, and the affidavit cannot thus be struck out on the basis of the grounds of opposition filed.

11. Will the appellants/applicants suffer substantial loss if the stay orders sought are not granted? In this regard, I note that the appeal filed is mainly on quantum of damages. In my view, since the appeal is principally on assessment of quantum of damages, I find that the appellants will suffer substantial loss only if the total amount is paid to the respondent. I will thus grant stay but subject to the appellants/applicants paying to the respondent part of the decretal amount, as the respondent was a passenger in the motor vehicle in question.

12. With regard to the requirement for provision of security by the applicants, in my view, payment of part of the decretal amount provides adequate security.

13. I thus allow the application on the following conditions –1)Stay of execution of judgment or decree herein is granted pending determination of the appeal.2)The stay herein granted is subject to the appellants/applicants paying the respondent through counsel part of the decretal amount Kshs.100,000/= within 45 days from today, otherwise the stay orders herein granted will automatically lapse.3)The costs of the application will abide the decision in the appeal.

DELIVERED, SIGNED & DATED THIS 8TH DAY OF NOVEMBER, 2022, VIRTUALLY AT MAKUENI.........................................................George DuluJudge