[2023] KEHC 19756 (KLR)

Musya alias Peninah Mueni Musya v Ndewa & another (Suing as the legal representatives of the Estate of Felix Mwanzia Mutuku) (Civil Appeal 57 of 2022) [2023] KEHC 19756 (KLR) (3 July 2023) (Ruling)

Neutral citation: [2023] KEHC 19756 (KLR)

Republic of Kenya

In the High Court at Makueni

Civil Appeal 57 of 2022

TM Matheka, J

July 3, 2023

Between

Penina Mueni Musya alias Peninah Mueni Musya

Appellant

and

Francis Munyao Ndewa

1st Respondent

Josphat Wambua Mutuku

2nd Respondent

Suing as the legal representatives of the Estate of Felix Mwanzia Mutuku

Ruling

1. What is before me is the application dated October 25, 2022 filed under certificate of urgency under sections 1A, 1B & 3A of the Civil Procedure Act (CPA) cap 21 Laws of Kenya, order 42 rule 6, order 50 rule 6 and order 51 rules 1 of the Civil Procedure Rules 2010. It seeks the following orders;a.Spent.b.Spent.c.That there be a stay of execution of the decree in Makueni CMCC No 134 of 2021 pending the hearing and determination of the appeal herein.d.That this court be pleased to grant any further and or other order which is just and fair in the circumstances hereof.e.That the costs be in the cause

The Application 2. The application is supported by the grounds on its face and the affidavit of Frankline Nyaga sworn on the same day. Frankline depones that he is the Senior Claims Manager at Old Mutual General Insurance Kenya Ltd, formerly known as UAP Insurance Co Ltd; the underwriter of the appellant’s vehicle Kxx xxxV. That the suit in the lower court and the appeal are prosecuted on the underwriter’s instructions pursuant to the provisions of cap 405 Laws of Kenya.

3. He depones that they are dissatisfied with the judgment on liability and quantum and the appellant is likely to suffer prejudice if stay of execution is not granted. He has exhibited the plaint, defence and submissions filed in the trial court as FN1. It is also his deposition that the appellant’s insurer is ready, able and willing to abide by any conditions that the court might deem just to secure the decree including depositing the judgment sum in a joint interest earning account.

4. His fear is that since the respondents are administrators of the estate of the deceased if the decretal sum is paid to them, it will be distributed to the beneficiaries of the estate making any recovery in the event of a successful appeal. Further, he depones that according to information from his advocates, which he verily believes to be true, the 1st respondent testified that he has no known income. Consequently, he is apprehensive that the 1st respondent will be unable to restitute the decretal amount if the appeal succeeds.

The Response 5. The application is opposed through the replying affidavit of Josphat Wambua Mutuku sworn on November 7, 2022. He depones that the application is unmeritorious and an abuse of the court process. That the applicants have not complied with the provisions of order 42 rule 6(2)(b) of the Civil Procedure Code. That being the successful litigants, they are entitled to the fruits of the judgment. That if the court is to order any security, ¾ of the decretal sum should be paid to them.

6. Further, he depones that the applicant is misleading this court by averring that the 1st respondent testified that he had no income yet he did not give evidence in the matter.

7. The application was canvassed through written submissions.

The Applicant’s Submissions 8. The applicant submits that the provisions of order 42 rule 6 of the CPR are in pari passu with the provisions of rule 5(2)(b) of the Court of Appeal Rules. She relies inter alia on the case of George Gikubu Mbuthia v Kenya Power & Lighting Co Ltd CA NAI 96 of 2010 (UR 71/2010) where the Court of Appeal held that;“Under rule 5(2)(b) (similar to order 42 rule 6 CPR 2010), the applicant was obliged to satisfy the court on two points, namely that his intended appeal from the decision of Mwera J is an arguable one i.e one which is not frivolous and that if we do not grant the orders he is seeking before us and his intended appeal were to succeed, that success would have been rendered nugatory by our refusal to grant him the orders.”

9. She depones that one of her grounds of appeal is that the trial magistrate erred by finding her 80% liable and another ground is that the trial court applied erroneous principles in assessing damages for loss of dependency. She contends that those are arguable points of appeal.

10. Secondly, she depones that if the appeal succeeds, the same will be rendered nugatory because she will not be able to recover the decretal sum from the respondents.

Respondents’ Submissions 11. They have identified the following as the issues for determination;a.Whether the appellant/applicant has demonstrated that she will suffer any irreparable loss if the application is not granted.b.Whether the respondent will suffer prejudice if this application is allowed.c.Whether the applicant should be ordered to make provisions for security.

12. On whether the appellant/applicant has demonstrated that she will suffer any irreparable loss if the application is not granted issue it is submitted that they suffered loss of a loved one and that can never be fully compensated or compared to anything. That after the court tried to wipe their tears by awarding them compensation; the applicant is out to add salt to the painful permanent wound. They rely on Nguruman Ltd v Jan Bonde Nielsen and 2 others; CANo 77 of 2012 where the Court of Appeal stated;“On the second factor, that the applicant must establish that he ‘might otherwise’ suffer irreparable injury which cannot be adequately remedied by damages in the absence of an injunction, is a threshold requirement and the burden is on the applicant to demonstrate, prima facie, the nature and extent of the injury. Speculative injury will not do; there must be more than an unfounded fear or apprehension on the part of the applicant……an injury is irreparable where there is no standard by which their amount can be measured with reasonable accuracy or the injury or harm is such a nature that monetary compensation, of whatever amount, will never be adequate remedy.”

13. They submit that he who alleges must prove and contend that the applicant has not tabled anything to prove their inability to pay.

14. On Whether the respondent will suffer prejudice if this application is allowed, it is submitted that the respondents will suffer prejudice and should be allowed to enjoy the fruits of the judgment. They have relied inter alia on Machira t/a Machira & Co Advocates East Africa Standard (No2) (2002) KLR 63 where the court stated that;“… to be obsessed with the protection of an appellant or intending appellant in total disregard or flitting mention of the so far successful opposite party is to flirt with one party as crocodile tears are shed for the other, contrary to sound principle for the exercise of a judicial discretion. The ordinary principle is that a successful party is entitled to the fruits of his judgment or of any decision of the court giving him success at any stage.”

15. On whether the applicant should be ordered to make provisions for security, it is submitted that the applicant has not deposited the decretal amount with the court to show that she will pay the same if the application is unsuccessful. They have relied inter alia on Gianfranco Manenthi & Anor v Africa Merchant Assurance Co Ltd (2019) eKLR where the court observed;“…the applicant must show and meet the condition of payment of security for due performance of the decree. Under this condition, a party who seeks the right of appeal from money decree of the lower court for an order of stay must satisfy this condition on security….it is trite that the winner of litigation should not be denied the opportunity to execute the decree in order to enjoy the fruits of his judgment in case the appeal fails. Further, order 42 should be seen from the point of view that a debt is already owed and due for payment to the successful litigant in a litigation before a court which has delivered the matter in his favour.”

16. The respondents urge the court that if it is inclined to allow the application, 50% should be paid to them as judgment on liability was by consent.

Analysis 17. Order 42 rule 6 of the Civil Procedure Rules, sets out the conditions this court is to consider in determining whether to grant stay pending appeal are; whether the applicant will suffer substantial loss if stay is not granted, whether the application has been filed without unreasonable delay and whether the applicant has furnished security for the due performance of the decree.

18. The judgment in the case appealed from was delivered on September 28, 2022 and this application was filed on October 26, 2022 together with the memorandum of appeal. Evidently, there was no delay in filing the application.

19. On substantial loss, the appellant is apprehensive that if the decretal amount is released to the respondents, she will be unable to recover the same if the appeal succeeds. The appellant submitted that she is dissatisfied with apportionment of liability in the ratio of 80:20 while the respondents submitted that judgment on liability was by consent. The trial court judgment was not among the annexures and the court struggled with this issue. As it is it is not clear whether liability was by consent or whether it was determined by the court. Nevertheless, each party submitted on the issue of liability giving the impression that judgment on liability was not by consent.

20. From the exhibited decree, the trial magistrate awarded the respondents Kshs 50,000/= for pain and suffering, Kshs 100,000/= for loss of expectation of life and Kshs 1,375,200/= for loss of dependency. I do not have the benefit of the proceedings in the lower court. There is nothing to support the submission that the respondents would be unable to pay if the decretal sum is paid to them.

21. As for security, the applicant’s insurer deposed that it is ready, able and willing to abide by any conditions that the court might deem just to secure the decree including depositing the judgment sum in a joint interest earning account.

22. The decree holder is owed by virtue of the judgment of the subordinate court. There could be a turn of events should the appeal succeed. It is the duty of the court to lay a balance of these interests.

Determination 23. In the circumstances I find that the application is merited and allowed in the following terms;a.That there be a stay of execution of the decree in Makueni CMCC No 134 of 2021 pending the hearing and determination of the appeal herein.b.That one third of the decretal sum be paid to the respondents within 30 days hereof.c.That the balance be deposited in a joint interest earning account in the names of the advocates for the appellant and the advocates for the respondent within 45 days hereofd.The record of appeal be filed and served within 45 days hereof.e.In default of order (b), (c) or (d) above the stay to lapse automatically.f.The costs of this application be in the cause.g.Mention before the Deputy Registrar in 30 days for compliance

DATED SIGNED AND DELIVERED VIRTUALLY THIS 3RDJULY 2023. ................MUMBUA T MATHEKAJUDGEAppellant’s Advocates: Mr. NgechuC.W Githae & Co. AdvocatesRespondents’ Advocates*J.A Makau & Co. Advocates