[2022] KEHC 14532 (KLR)

Trailink Group Limited & another v Wamaiatha & 2 others (Civil Case E072 of 2021) [2022] KEHC 14532 (KLR) (19 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14532 (KLR)

Republic of Kenya

In the High Court at Makueni

Civil Case E072 of 2021

GMA Dulu, J

October 19, 2022

Between

Trailink Group Limited

1st Applicant

Antony Araujo

2nd Applicant

and

Alice Nyauca Wamaiatha

1st Respondent

Sokwe Duluxe Safaris Africa Limited

2nd Respondent

George Odhiambo

3rd Respondent

Ruling

1. Before me is an application brought by way of Notice of Motion dated 6th October 2021 filed by the two appellants/applicants through counsel M/s Mwangangi Nzisa & Associates, under section 3, 3A and 75(1) of the Civil Procedure Act (Cap. 75), and Order 42 Rule 1, 6, and Order 43 Rule 1, Order 50 Rule 6, Order 51 Rules 1, 3 and 4 of the Civil Procedure Rules.

2. The application has five (5) prayers two of which have been spent as follows –1. (Spent)2. Spent)3. There be a stay of execution of judgment of the honourable court delivered on 23/09/2021 pending the hearing and determination of the appeal.4. Any other relief that the honourable court deem fit and appropriate to grant costs be in the cause.

3. The application has grounds on the face of the Notice of Motion that the trial court delivered its judgment against the applicant on 29/09/2021 for Kshs.5,235,673/= less 20% as damages, that judgment was not delivered in the presence of counsel for the applicant due to technical upsets in the Teams online platform, that the applicant and insurers are dissatisfied with the judgment and have appealed, and that the applicants stands to be prejudiced if stay of execution is not granted.

4. The application was filed with a supporting affidavit sworn on 06/10/2021 by Linda Chorio the Legal Officer of APA Insurance Co. Ltd, who deponed that – judgment was delivered in the absence of counsel, and that the respondents’ counsel had already written a letter indicating intention to execute, and that the applicants were willing to furnish security within the policy limit of Kshs.3,000,000/=.

5. The application has been opposed through a replying affidavit sworn on 12/11/2022 by Alice Nyauca Waithaka the 1st respondent who deponed that she suffered serious injuries in the accident, and that liability was agreed at 80:20 thus the only change on appeal might be reduction of the award of damages, and that she asks the court to release to her half of the decretal award Kshs.2,094,269/= and interest in order to continue medical treatment at AIC Kijabe hospital.

6. The application was canvassed through filing of written submissions. In this regard, I have perused and considered the submissions filed by Mwangangi Nzisa & company for the applicants and the submissions filed by K. Kibiku & company for the 1st respondent. No submissions were filed on behalf of the 2nd and 3rd respondents.

7. This is an application for stay of execution of judgment or decree pending determination of appeal, and is thus governed by the provisions of Order 42 Rule 6(2) of the Civil Procedure Rules which provides as follows –6(2) No order for stay of execution shall be made under subrule (1) unlessa.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.b.Such security as the court order for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.

8. This application having been filed on 01/11/2021 in respect of a judgment delivered on 23/09/2022 was filed months and a few days after judgment. It is trite that what constitutes unreasonale delay is determined by the circumstances of each case. In the present case, the explanation given is that judgment was delivered in the absence of the applicant’s counsel, due to technical hitch in the virtual platform. Bearing in mind that it was during the corona virus pandemic period, I find no unreasonable delay in filing the application.

9. Will the applicant suffer substantial loss if the stay orders sought are not granted? In this regard, I note that the amount of the award of damages is large. If the respondent does not refund the amount paid if appeal succeed, in my view, the applicant will suffer substantial loss. However, as liability was recorded by consent on 80:20 basis, I am of the view that stay orders can be issued only on payment of the decretal amount as the respondent should not be denied the enjoyment of fruits of the judgment. Consequently, stay can only be granted subject to payment of part of the decretal amount.

10. As for provision of security by the applicant, I note that in the supporting affidavit, the respondent has offered to provide security within the insurance policy limit of Kshs.3,000,000/=. In my view however, payment of part of the decretal amount to the applicant will be sufficient security.

11. Consequently and for the above reasons, I allow the application and order as follows –

1. Stay of execution of judgment or decree herein is granted pending appeal.

2. The stay of execution herein granted will be subject to the respondent paying the applicant part of the decretal amount Kshs.2,000,000/= within 60 days from today otherwise the stay orders will automatically lapse.

3. Costs of the application will follow the determination of the appeal.

DELIVERED, SIGNED & DATED THIS 19TH DAY OF OCTOBER, 2022, VIRTUALLY AT MAKUENI....................................GEORGE DULUJUDGE