https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10642

Mwangi alias Dancun Gichuru Mwangi v Njeru (Suing on her own Behalf and as the Administratrix ofthe Estate of ohe Late Peris Wakuthii alias Peris Wakuthie) (Civil Appeal E022 of 2026) [2026] KEHC 10642 (KLR) (14 May 2026) (Ruling) Neutral citation: [2026] KEHC 10642 (KLR) Republic of Kenya In the High Court at Kerugoya Civil Appeal E022 of 2026 EM Muriithi, J May 14, 2026 Between Duncan Gichuru Mwangi alias Dancun Gichuru Mwangi Applicant and Margaret Muthoni Njeru (Suing on her own Behalf and as the Administratrix ofthe Estate of ohe Late Peris Wakuthii alias Peris Wakuthie) Respondent (Being an appeal from the judgment and decree of Hon. Martha Opanga (PM) on 3rd February 2026 in Wang’uru PMCC No. E062 of 2021) Ruling Introduction 1.This is a ruling on an application by Notice of Motion dated 9/3/2026 by the appellant for stay of execution of judgment of the trial court delivered on 3/2/2026 in which the Court awarded damages in a fatal road traffic accident case involving a 10 year old child where liability was agreed at 80:20 against the defendant/appellant, made up as follows:“ConclusionIn conclusion I enter judgment for the plaintiff against the defendant as follows:Liability is assessed at 80% in favor of the plaintiff against the defendants.General damages under Law Reform Act and Fatal Accidents Act -Pain and suffering Kshs.30,000/=,Loss of expectation of life Ksh.100,000/=,Loss of dependency Kshs.1,700,000/=Special damages Kshs.66,520/=Subtotal award Kshs.1,896,520/=Less 20% Kshs.379,304/=Total award Kshs.1,517,2l6/=.The plaintiff shall also have the cost of this suit with interest thereon.Read, dated and signed in open court at Wang'uru this 3rd day of February 2026.Before me: Hon Martha Opanga-PM” 2.The Memorandum of Appeal dated 3/3/2026 lists principal grounds of appeal were that the awards for dependency, pain and suffering and special damages were excessive and against weight of evidence and that the court failed to make an apportionment of costs of the suit on the basis of the ratio of liability agreed between the parties. 3.By a Replying Affidavit sworn on 19/3/2026, the respondent asserts a right to expedited enjoyment of fruits of the judgment; unproven substantial loss if stay of execution is not granted; and failure to provide security; and urges the Court to order that the appellant deposits half the decretal sum in a joint interest earning account in the names of advocates on record and the other half into Court. Stay of execution pending appeal 4.The Court has considered the application together with the Replying Affidavit of the Respondent and the principles for the grant of stay of execution pending appeal under Order 42 Rule 6 (1) and (2) of the Civil Procedure Rules, which require proof of substantial loss if stay is not granted and provision of security for the due performance of the decree together with a demonstration that the application is made without undue delay, as follows:“ 6.Stay in case of appeal [Order 42, rule 6](1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.(2)No order for stay of execution shall be made under subrule (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; and (b) 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.” On the merit of the application for stay of execution 5.In the present case, there is only short delay in filing the application for stay within the 30-day stay granted by the trial court, on the 9/3/2026 against the judgment delivered on 3/2/2026. 6.Generally, on the apparent merits of the appeal there is an arguable case in the nature of serious questions to be put before the appellant court as shown in the Memorandum of Appeal, bearing in mind that an arguable appeal need be one that must eventually succeed at the hearing. 7.There is an obvious substantial loss of the not insignificant decretal sum if execution were allowed and the appellant was not able to recover this amount from the respondent, when it is considered that the appellant’s expressed apprehension of inability to recover the decretal sum from the respondent upon successful appeal has not been rebutted by any evidence of means to refund. 8.As regards security for due performance of the decree, in balancing the interest of the appellant to pursue an appeal to a higher court while preserving the substratum of the appeal or preventing the appeal from being rendered nugatory against the respondent’s interest in the enjoyment of the fruits of her judgment without undue delay, the Court will make an order for the payment of part of the decretal sum to the respondent and the deposit into court of another, as security for the due performance of the decree as may become binding on the appellant upon determination of the appeal. ORDERS 9.Accordingly, for the reasons set out above, the Court finds merit in the application and makes the following orders:1.There shall be a stay of execution of the Judgment of 3/2/2026 and all consequential orders of the trial court pending the hearing and determination of the appeal.2.As a condition for the grant of stay of execution pending appeal the appellant/applicant shall within the next thirty (30) days -a.pay to the Respondent through her Counsel the sum of Ksh.500,000/= (Kenya Shillings Five Hundred Thousand) approximating one third (1/3) of the net decretal sum, andb.deposit with the Court of the amount equivalent to half (1/2) of the net decretal sum.3.The Record of Appeal shall be filed within forty-five (45) days. 4.Directions as to the hearing of the appeal shall be taken on 7/7/2026. 10.The Costs of the application shall be costs in the appeal.Orders accordingly. DATED AND DELIVERED THIS 14TH DAY OF MAY 2026.EDWARD M. MURIITHIJUDGEAPPEARANCES:Mr. Omondi for the Appellant.Ms. Naututu for the Respondent.