[2023] KEHC 25040 (KLR)

Wambua v Kyengo (Suing on Behalf of the Estate of Jackline Mutheu Mutungi) (Civil Appeal 67 of 2022) [2023] KEHC 25040 (KLR) (10 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25040 (KLR)

Republic of Kenya

In the High Court at Makueni

Civil Appeal 67 of 2022

TM Matheka, J

November 10, 2023

Between

Wilson Muthiani Wambua

Appellant

and

Joseph Mutungi Kyengo (Suing on Behalf of the Estate of Jackline Mutheu Mutungi)

Respondent

Ruling

1. The application for determination is dated 05th December 2022. It was filed under certificate of urgency and is brought under Sections 1A, 1B & 3A of the Civil Procedure Act, Order 42 Rule 6 of the Civil Procedure Rules 2010, Article 159(2) of the Constitutionof Kenya 2010 and all other enabling provisions of the law. It seeks the following orders;a.Spent.b.That there be a stay of execution of the decree and/or all the consequential orders pursuant to the judgment delivered against the appellant on 10th November 2022 by Hon. E.M Muiru (PM) in Kilungu MCCC Number E235 of 2021 pending the hearing inter partes and determination of this application.c.That there be a stay of execution of the decree in respect of the judgment delivered on 10th November 2022 by Hon. E.M Muiru (PM) and all consequential orders arising therefrom pending the hearing and determination of this appeal.d.That the costs of this application be provided for.

2. The application is supported by the grounds on its face and the Applicant’s Affidavit sworn on the same day. He deposes that if the order of stay is not granted, he will suffer substantial loss since the respondent will be unable to refund the decretal sum if the appeal succeeds. That he has an arguable appeal with very high probability of success and is willing to furnish security as directed by the court. Further, he deposes that the application has been made without unreasonable delay. A copy of the judgment is exhibited as WMW 1.

3. He deposes that the respondents Advocates may commence execution proceedings soon as they have already issued him with tabulation of the court’s award and its costs. The letter is exhibited as WMW 2. It is also is deposition that the respondent does not stand to be prejudiced in any way if the orders are granted.

4. The application is opposed through the respondent’s replying affidavit sworn on 09/02/2023. He deposes that failure to annex the decree makes the application defective. That execution has commenced and he has already expended a sum of Kshs 100,000/=. Two letters are exhibited as JM 1 & 2. That the applicant may deposit the decretal sum in court or bank account.

5. The application was canvassed through written submissions.

The Applicant’s Submissions 6. As to whether he will suffer substantial loss, the applicant submits that if execution is carried out against him, it will definitely interfere with his financial affairs and the appeal will be rendered nugatory. He contends that the respondent has not shown capacity to refund the amount if the appeal is successful. He has relied inter alia on Nicholas Stephen Okaka & Anor –vs- Alfred Waga Wesonga (2022) eKLR where the court observed;“In this case, the Respondent has not given any material as to his ability to repay the decretal sum in case the appeal succeeds and in light of the depositions by the applicants’ counsel that they shall suffer substantial loss if stay is not granted. Accordingly, I am persuaded that substantial loss has been proved.”

7. He submits that there was no unreasonable delay as the application was made immediately the instant appeal was filed.

8. With regard to security, he submits that he has expressed readiness to abide by the terms given by the court. He has proposed to deposit 50% of the decretal sum within a reasonable time frame in a joint interest earning account to be opened in the names of both Advocates.

The Respondent’s Submissions 9. The respondent submits that the applicant has approached the court prematurely as there is no decree yet. That essentially, any stay sought is against execution of the decree. He however submits that he is amenable to the applicant’s proposal to deposit security but contends that such deposit should be of the full amount plus costs. He submits that a full deposit ensures that the decretal sum is secure, available and within reach of any judgment as may issue in deposition of the appeal.

10. He submits that as a condition for stay, the applicant should be ordered to have the costs assessed and the decretal sum plus costs be either deposited in court or in a joint bank account in the name of both counsel on record. That the applicant should be given time within which to prepare, file and serve a Record of Appeal so that the appeal can be heard and concluded without further ado.

11. He submits that he is entitled to costs of this application as he literally had to beg severally to be served and when it was not forthcoming, he approached the court to be availed with a photocopy.

12. The only issue for determination is whether the application is merited.

Whether stay of execution should be granted 13. Order 42 Rule 6 of the Civil Procedure Rules, lays down the conditions that guide the Court on when to grant stay pending appeal; whether substantial loss will occur if stay is not granted, whether the application has been filed without unreasonable delay and whether the applicant has furnished security for the due performance of the decree.

14. This respondent is not really opposed to the application so long as the applicant complies with the requirement of furnishing security.

15. From the award by the trial court is as follows; Pain & suffering………………………….Kshs 100,000/=

Loss of expectation of life………………Kshs 100,000/=

Loss of dependency…………………...Kshs 2,161,916/=Total…………………………….…..…. Kshs 2,361,916/=Less 30% contribution…………………Kshs 708, 574. 80/=

Special damages……………………….Kshs 70,000/=

Grand Total…………………………….Kshs 1,723,341. 20/=

16. In the circumstances the application is allowed in the following terms:i.That the stay of execution is allowed pending the hearing and determination of the appeal.ii.The condition for the stay for security for the performance of the decree is that the applicant first within 30 days hereof deposits in a joint interest earning account in the joint names of the advocates the entire decretal sumiii.Secondly, the costs after assessment, into the same joint interest earning accounts in the joint names of the advocates.iv.In default of (ii) above the stay will lapse and the application will stand dismissed with costs.v.The appellant to file and serve the Record of Appeal within 30 days hereof.vi.The costs of this application to abide the outcome of the appeal.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 10TH NOVEMBER DAY OF 2023MUMBUA T MATHEKA....................................JUDGEI certify that this is a true copy of the originalSignedDEPUTY REGISTRARApplicants’ AdvocatesKamotho Njomo & Co. AdvocatesRespondents’ AdvocatesKirubi Mwangi Ben & Co.Advocates