[2022] KEHC 343 (KLR)

Mwangi & 2 others v Matheka & another (Civil Appeal E040 of 2021) [2022] KEHC 343 (KLR) (12 May 2022) (Ruling)

Neutral citation: [2022] KEHC 343 (KLR)

Republic of Kenya

In the High Court at Makueni

Civil Appeal E040 of 2021

GMA Dulu, J

May 12, 2022

Between

David Mwangi

1st Applicant

A.E Transporters Ltd

2nd Applicant

Elijah Ngugi Munyaka

3rd Applicant

and

Laureen Mutheu Matheka

1st Respondent

James Mwalimu Nzui (Suing as the Administrators of the Estate of Julius Tumbo Mwalimu (Deceased)

2nd Respondent

Ruling

1. Before me is an application by way of Notice of Motion dated 12/7/2021 filed under section 1A, 1B Civil Procedure Act(Cap. 21), and Order 42 Rule 6, Order 51 Rule 1 of the Civil Procedure Rules.

2. The prayers in the application are five but some have been spent as follows –1)(Spent)2)(Spent)3)That there be a stay of execution of decree in Makindu Civil Case No. 449 of 2016 Laureen Mutheu Matheka and James Mwalimu Nzui –vs- David Mwangi & 2 Others pending the hearing and determination of the appeal herein.4)That the court be pleased to grant any further or other order which is just and fair in the circumstances hereon.5)That costs be in the cause.

3. The application has grounds on the face of the Notice of Motion that judgment was delivered on 15/06/2021 for Kshs.5,557,910/= and the appellants have appealed and the initial orders of stay would lapse on 15/7/2021.

4. The application was filed with a supporting affidavit sworn on 12/7/2021 by Frankline Nyaga the Senior Claims Manager of UAP Insurance Co. Ltd which amplifies the grounds of the application.

5. The application has been opposed through a replying affidavit sworn by Laureen Mutheu Matheka one of the respondents on 19/07/2021 in which it is deponed that the appeal is not an arguable appeal as the appellants/applicants did not tender evidence to controvert the evidence of the respondent.

6. The application proceeded through filing of written submissions. In this regard, I have perused and considered the submissions filed by C.W Githae & Company for the appellants/applicants and the submissions filed by Mutunga Muindi & Company advocates for the respondents.

7. This being an application for stay of execution of judgment or decree, it is governed by the provisions of Order 42 Rule 6 of the Civil Procedure Rules, especially Rule 6(2).

8. I have perused the memorandum of appeal, and the grounds are mainly on quantum of damages.

9. Will the appellants/applicants suffer substantial loss if the stay orders sought are not granted? In my view, with the facts placed before me where the means of the respondents is not known, if stay orders are not granted and the appeal succeeds, the applicants might not be able to recover the amount paid thus suffer substantial loss.

10. Was the application filed without unreasonable delay? In my view there was no inordinate delay in filing the application, as it was filed before the lapse of the original stay of execution orders.

11. Has the applicant provided security? The applicant has offered that the decretal amount be put in a joint interest earning bank account. In my view however, payment of part of the decretal amount to the respondent will be sufficient security.

12. Consequently and for the above reasons, I allow the application and order as follows –1. I grant stay of execution orders pending determination of appeal as requested.2. Such stay of execution however is subject to the applicants/appellants paying the respondents through counsel part of the decretal amount Kshs.1,200,000/= within 60 days from today.3. In default of payment as in (2) above, the stay orders herein granted will automatically lapse and be of no effect.4. The costs of the application will abide the decision in the appeal.

DELIVERED, SIGNED & DATED THIS 12TH DAY OF MAY, 2022, IN OPEN COURT AT MAKUENI.GEORGE DULUJUDGE