[2022] KEHC 13958 (KLR)

Regina & another v Maina (Civil Appeal E422 of 2022) [2022] KEHC 13958 (KLR) (Civ) (19 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13958 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E422 of 2022

JK Sergon, J

October 19, 2022

Between

Maina Wachira Regina

1st Applicant

Maina Gichuki

2nd Applicant

and

Geoffrey Mbuthia Maina

Respondent

(Ruling delivered on June 17, 2022 by the Honourable Duty Judge-Lordship JK Sergon Miscellaneous Application E332 of 2021 )

Ruling

1. This ruling relates to the notice of motion dated August 3, 2022 taken out by the 1st and 2nd appellants/applicants supported by the grounds set out on its body and the facts stated in the affidavit of Advocate Anertia Salinder Gulenywa. The following are the orders being sought therein:i.Spent.ii.Spent.iii.Spent.iv.That this honourable court be pleased to grant orders for stay of execution of the judgment delivered by Honourable Principal Magistrate DO Mbeja (Mr) on June 4, 2021 while sitting in Milimani CMCC 4636 of 2019 pending hearing and determination of the appeal.v.That this honourable court be pleased to grant orders to vary, extend, review, set aside and/or stay the ruling delivered on June 17, 2022 by the Honourable Duty Judge-Lordship JK Sergon requiring the decretal sum of Kshs 3,231,160/= and the appellants/applicants are allowed to furnish this honourable court with a bank guarantee of Kshs 3,000,000/=.vi.That this honourable court be pleased to grant a stay of all proceedings in the trial court, pending the hearing and determination of the appeal.vii.Spent.viii.That this honourable court be pleased to issue any other order and/or direction it deem fit to grant in the circumstances.ix.That costs of the application abide the outcome of the appeal.

2. The respondent responded to the motion by way of the replying affidavit sworn by advocate Musili Mbiti on September 1, 2022.

3. At the interparties hearing of the motion, the parties’ respective advocates relied on the averments made in the respective affidavits.

4. I have considered the grounds laid out on the body of the motion; as well as the facts deponed in the supporting and replying affidavits respectively.

5. A brief background of the matter as drawn from the record is that the respondent filed a suit against the applicants before the lower court and sought for general and special damages under the tort of negligence arising out of a road traffic accident.

6. Upon the trial of the suit, the trial court delivered judgment on June 4, 2021 in favor of the respondent and against the applicants, by awarding general and special damages in the respective sums of Kshs 3,000,000/= and Kshs 30,800/= plus costs of the suit and interest thereon.

7. Being aggrieved by the above decision, the applicant filed the application dated July 12, 2021 and sought for the extension of time within which to lodge an appeal and a further order for a stay of execution pending the hearing and determination of the appeal.

8. Upon hearing the parties, this court by way of the ruling delivered on June 17, 2022 allowed the application and gave directions on the timelines for lodging the appeal, and further gave directions for the applicants to deposit the decretal sum in a joint interest earning account in the names of the parties’ advocates within 45 days from the aforementioned date, in default of which the stay order would lapse.

9. Subsequently, the applicants brought the instant motion.

10. Returning to the motion, upon my perusal of the record, I note that the suit before the trial court was determined and a decree was issued, thereby concluding the proceedings before the trial court. It therefore follows that there are no further proceedings to be stayed, and hence the order sought for a stay of proceedings fails.

11. Going by my findings above, it is therefore apparent that the order pending for consideration and determination is that of a review and/or extension of the condition given by this court for the granting of an order for a stay of execution by allowing the applicant to deposit an alternative security, so as to stay execution of the decree.

12. On the one part, advocate Anertia Salinder Gulenywa states on behalf of the applicants that the applicants have since complied with the timelines for lodging the appeal and therefore request for leave to put in an alternative form of security in the form of a bank guarantee in the sum of Kshs 3,000,000/= for economic reasons.

13. In response, advocate Musili Mbiti states on behalf of the respondent that the instant Motion has not been brought in good faith and is purely intended to delay the respondent’s enjoyment of the fruits of his judgment and hence the motion ought to be dismissed with costs.

14. The advocate further states that the provision of a bank guarantee does not constitute a suitable security and that in any event, the applicants have not made any effort towards complying with the conditions set earlier on.

15. Upon my perusal of the record, it is apparent that the instant motion was brought after the lapse of the timelines set for compliance with the conditions set by this court. Nevertheless, I am satisfied that the motion has been brought without unreasonable delay.

16. Upon my consideration of the reasons given by the applicant for seeking to have the condition for a stay of execution reviewed and/or varied alongside the protests by the respondent, I note that the proposal on the provision of a bank guarantee was previously raised before me and was taken into consideration in setting the conditions for granting the previous order for a stay of execution.

17. I similarly note that the security provided ought to be commensurate to the decretal sum and hence the applicants cannot be permitted to provide a lesser amount than the decretal sum.

18. In view of the foregoing circumstances, I find that the provision of a bank guarantee would not constitute a suitable security here.

19. That notwithstanding, upon balancing the competing interests of the parties, I find it reasonable and only fair for me to enlarge the time required for the applicants to comply with the conditions for granting an order for a stay of execution.

20. The upshot therefore is that I will allow the motion dated August 3, 2022 in terms of order (v) and on the following terms:a.The timeline for compliance with the conditions for granting the order for a stay of execution order issued on June 17, 2022 be and is hereby extended on the condition that the applicants deposit the entire decretal sum in a joint interest earning account in the names of the parties’ advocates/firms of advocates within 30 days from today, failure to which the order for stay shall automatically lapse.b.Costs of the application to abide the outcome of the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 19TH DAY OF OCTOBER, 2022. ........................................JK SERGONJUDGEIn the presence of:……………………………. for the 1st and 2nd appellants/applicants.……………………………. for the respondent.