[2022] KEHC 1511 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MAKUENI

HCCA NO. E041 OF 2021

P.N MASHRU LTD............................................................................1ST APPELLANT/APPLICANT

RICHARD ASOMBA........................................................................2ND APPELALNT/APPLICANT

-VERSUS-

DENNIS KAVAI......................................................................................................1ST RESPONDENT

RULING

1. Before me is an application brought by way of Notice of Motion dated 21st July 2021 seeking four orders, two of which have been spent as follows –

1) (spent)

2) (spent)

3) That the applicant be granted stay of execution pending hearing and determination of Makueni Appeal No. 41 of 2021 P.N Mashru Ltd –vs- Dennis Kavai.

4) That the costs of this application be provided for.

2. The application has grounds on the face of the Notice of Motion that the initial stay of execution of 30 days granted had lapsed on 18/7/2021, and that the award of damages herein of Kshs.150,000/= was unfair and contrary to awards for similar injuries and was thus excessive.

3. The application was filed with a supporting affidavit sworn by Geoffrey Kilonzo advocate for the applicant, which amplifies the grounds of the application, and adds that if the stay orders sought are not granted, the applicant will suffer substantial

loss and great prejudice. Annexed to the affidavit is a memorandum of appeal.

4. The application is opposed through a replying affidavit sworn on 3rd July 2021 by Dennis Kavai the respondent in which it is deponed that the applicant has not demonstrated how they will suffer substantial loss if the stay orders sought are not granted.

5. The application was canvassed through filing of written submissions. In this regard, though I was told by Ms. Kyalo for the applicant that both sides had filed written submissions, I have only seen the submissions filed on 12/10/2021 by Waiganjo Wachira & company for the respondents.

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(2) of the Civil Procedure Rules. In such an application, an applicant has to show substantial loss they will suffer if stay is not granted. The application has to be filed without undue delay, and the applicant has to offer or be willing to provide security.

7. Coming now to consider the issues, I note that this is a money decree, and the appeal is on quantum of damages – which is said to be excessive. As such therefore, in my view, if stay orders sought are not granted and the whole amount is paid out, and the respondent is not able to refund the same in case the appeal succeeds, then substantial loss may result to the applicant.

8. In considering the application also I note that the application herein has been filed without undue delay, and the applicant has indicated willingness to comply with orders of the court. Thus in my view the applicant has satisfied the three legal requirements.

9. I will thus allow the application and grant stay of execution, subject to the applicant paying to the respondent part of the decretal amount. Consequently, I order as follows –

1) I grant orders of stay of execution pending hearing and determination of appeal herein.

2) The stay of execution above will be subject to the applicant paying to the respondent through counsel part of the decretal sum of Kshs.70,000/= within 30 days from today.

3) In default of payment of the part of the decretal amount in (2) above, the stay of execution orders granted herein will automatically lapse and have no effect.

4) The costs of the application will follow the determination of the appeal.

DELIVERED, SIGNED & DATED THIS 15TH DAY OF MARCH, 2022, IN OPEN COURT AT MAKUENI.

............................

GEORGE DULU

JUDGE