[2024] KEHC 6823 (KLR)
The court found that the applicant had not disclosed the decretal amount but accepted the respondent's assertion regarding the sum. The court held that substantial loss would only arise if the entire decretal amount was paid and became irrecoverable should the appeal succeed, especially since the appeal was only on...
Source-derived case information.
- Citation
- [2024] KEHC 6823 (KLR)
- Parties
- Appellant: Brightone Msengeti Mghanga; Respondent: Philip Jackson Said
- Court
- High Court
- Court Station
- High Court at Voi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E018 of 2024
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- Application for stay of execution pending appeal allowed on condition.
- Judges
- GMA Dulu
- Legal Topics
- Stay of Execution, Money Decree, Security for Due Performance, Motor Accident Negligence, Quantum of Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Brightone Msengeti Mghanga
Appellant
Philip Jackson Said
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether the applicant has satisfied the conditions for grant of stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules.
- 2 Whether substantial loss will result to the applicant if stay is not granted.
- 3 Whether the application was filed without unreasonable delay.
Ratio Decidendi
The court found that the applicant had not disclosed the decretal amount but accepted the respondent's assertion regarding the sum. The court held that substantial loss would only arise if the entire decretal amount was paid and became irrecoverable should the appeal succeed, especially since the appeal was only on quantum. The application was filed promptly after judgment, satisfying the requirement of absence of unreasonable delay. The court determined that payment of part of the decretal amount would constitute sufficient security for the due performance of the decree. Accordingly, the court granted a conditional stay of execution pending appeal, subject to the applicant paying Kshs....
Court Disposition
Application for stay of execution pending appeal allowed on condition.
Orders
- Stay of execution of decree or judgment granted pending determination of appeal.
- Stay is conditional upon applicant paying respondent Kshs. 500,000 within 45 days through counsel.
Full Case Text
Judgment text and source record
28 paragraphs
Mghanga v Said (Civil Appeal E018 of 2024) [2024] KEHC 6823 (KLR) (4 June 2024) (Ruling)
Neutral citation: [2024] KEHC 6823 (KLR)
Republic of Kenya
In the High Court at Voi
Civil Appeal E018 of 2024
GMA Dulu, J
June 4, 2024
Between
Brightone Msengeti Mghanga
Appellant
and
Philip Jackson Said
Respondent
Ruling
1. Before me is an application by way of Notice of Motion dated 13th March 2024 filed through counsel Murimi, Mbago & Muchela Advocates under Order 42 Rule 6 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act (Cap.21).
2. The prayers in the application are as follows:-1. (Spent)2. (Spent)3. The court be pleased to stay the aforesaid judgment/decree pending the hearing and determination of the appeal herein.4. That costs of this application be provided for.
3. The application has grounds on the face of the Notice of Motion that if the judgment in Wundanyi CMCC No. E024 of 2022 is not stayed, the applicant will suffer substantial loss and the appeal herein rendered nugatory.
4. The application was filed with a supporting affidavit sworn on 13th March 2023 by Kevin Kitavi the Deputy Manager – Legal of MUA Insurance (K) Ltd, which amplifies the grounds of the application.
5. The application was opposed through a replying affidavit sworn on 21st March 2024 by Philip Jackson Mwandazi Said the respondent in which it was deponed that the supporting affidavit was sworn by a stranger, and that if the stay orders sought are granted, then half of the decretal amount Kshs. 921,756/80 be released to the respondent through his advocate.
6. The application was canvassed through written submissions. In this regard, I have perused and considered the submissions filed by Murimi, Mbago & Muchela Advocates for the applicant as well as the submissions filed by Njoroge Mwangi & Company Advocates for the respondent.
7. This being an application for stay of execution of decree or judgment pending appeal, it is governed by the provisions of Order 42 Rule 6 of the Civil Procedure Rules. In particular Rule 6(2) provides as follows:-6 (2) No order for stay of execution shall be made under sub-rule (1) unlessa.The court is satisfied that substantial loss may result to the applicant unless the order is made and 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.
8. This is a money decree arising from alleged acts of negligence relating to a motor traffic accident. The applicant’s counsel has not disclosed the decretal amount, but the respondent claims that half of the decretal amount is Kskhs. 921,756/80.
9. In my view, the applicant should have disclosed the decretal amount. I am also of the view that the applicant will suffer substantial loss only if the entire amount is paid to the respondent and is not recoverable in case the appeal succeeds, but not otherwise in view of the fact that the grounds of appeal herein are only on quantum of damages awarded.
10. Thus in considering grant of stay orders, I will have to order payment of part of the decretal amount, such an order in my view will be fair to all parties and otherwise, I find that the applicant will suffer substantial if the stay orders sought are not granted.
11. Was the application filed without unreasonable delay? Judgment herein was entered on 29th February 2024, and this application filed on 13th March 2024. In my view, there was no inordinate delay in filing this application.
12. On provision of security by the applicant, in my view payment of part of the decretal amount will be sufficient security.
13. For the above reasons, I allow the application and order as follows:-i.I grant stay of execution of decree or judgment herein pending determination of appeal.ii.The above stay order is granted subject to the applicant paying the respondent through counsel part of the decretal amount Kshs. 500,000/= within 45 days from today.iii.In default of (ii) above, the stay orders herein granted will automatically lapse and be of no effect.iv.Costs of this application will follow the determination of the appeal.
DATED, SIGNED AND DELIVERED THIS 4TH DAY OF JUNE 2024 IN OPEN COURT AT VOI VIRTUALLY.GEORGE DULUJUDGEIn the presence of:-Alfred/Trizah – Court AssistantsMs. Atieno for the applicantMr. Kazungu for the respondent