[2023] KEHC 25533 (KLR)

Oyaro v Msagha (Civil Appeal E036 of 2023) [2023] KEHC 25533 (KLR) (17 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25533 (KLR)

Republic of Kenya

In the High Court at Voi

Civil Appeal E036 of 2023

GMA Dulu, J

November 17, 2023

Between

Dadius Mosoti Oyaro

Appellant

and

Joyce Sambo Msagha

Respondent

Ruling

1. Before me is an application by way of Notice of Motion dated September 16, 2023 filed under section 1A, 1B, 3, 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 3 of the Civil Procedure Rules 2010.

2. The prayers in the application are as follows:-1. (Spent).2. (Spent).3. (Spent).4. That this honorable court be pleased to stay execution and proceedings of the judgment from Wundanyi Civil Suit No 49 of 2021 pending the hearing and determination of this appeal herein.5. That the costs of this application abide the outcome of the appeal.

3. The application was filed with a Supporting Affidavit sworn by Nassanga Sophie Advocate for the applicant on September 16, 2023 in which it was deponed that the initial stay of execution orders granted lapsed on September 11, 2023.

4. The application is opposed through a replying affidavit sworn on September 27, 2023 by Joyce Sambo Msagha in which it was deponed that the applicant has not demonstrated which substantial loss he will suffer if the stay orders sought are not granted.

5. The application was canvassed through Written Submissions. In this regard, I have perused and considered the submissions filed by Kimondo Gachoka & Company Advocates for the appellant/applicant, as well as the Submissions filed by Njoroge Mwangi & Company for the respondent.

6. This being an application for stay of execution of judgment or decree pending appeal, it is governed by the provisions of order 42 rule 6 of the Civil Procedure Rules, especially rule 6(2) 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 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.”

7. Though the applicant’s counsel has submitted that one of the considerations herein is whether the appeal has high chances of success, in my view that is not a requirement for an application for stay of execution filed in the High Court, though it might be so in the Court of Appeal.

8. Was the application herein filed without unreasonable delay? In this regard, I note that the judgment was delivered on July 28, 2023 and this application filed on September 16, 2023 a period of less than two months. In the circumstances of this case, I find that there was no unreasonable delay in filing this application.

9. I now turn to whether the applicant is likely to suffer substantial loss if the stay orders sought are not granted. I note that this is a matter relating to a monetary decree arising from a traffic accident, and the appeal filed is mainly on the quantum of damages awarded. It is also important to point out that the respondent was a passenger in a motor vehicle when the accident occurred.

10. In those circumstances, I find that the applicant is likely to suffer substantial loss only if the entire award is paid, and then the appeal succeeds and they find it difficult to recover the same. I thus find that stay of execution orders can only be justified if the applicant pays part of the decretal amount to the respondent. Since the total award is Kshs 202,500/=, I will order payment of Kshs 80,000/=

11. With regard to provision of security, in my view the part payment of the decretal amount above will be sufficient security.

12. For the above reasons, I allow this application on the following terms:-a.Stay of execution of judgment or decree pending determination of appeal is hereby granted, subject to the appellant/applicant paying part of the decretal amount Kshs 80,000/= to the respondent through counsel within 45 days from today.b.If the payment of Kshs 80,000/= is not effected within 45 days from today, the stay orders herein granted will automatically lapse and have no effect.c.The costs of the application will abide the results of the appeal.

DATED, SIGNED AND DELIVERED THIS 17TH DAY OF NOVEMBER 2023 AT VOI VIRTUALLY.GEORGE DULUJUDGEIn the presence of:-Alfred – Court AssistantMs. Githinji for the applicantMr. Kazungu for the respondent