[2022] KEHC 11399 (KLR)

Wilson & another v Gathoni (Civil Appeal E037 of 2021) [2022] KEHC 11399 (KLR) (9 June 2022) (Ruling)

Neutral citation: [2022] KEHC 11399 (KLR)

Republic of Kenya

In the High Court at Makueni

Civil Appeal E037 of 2021

GMA Dulu, J

June 9, 2022

Between

Benjamin Mwanzia Wilson

1st Appellant

Wilson Kimatu Mutungi

2nd Appellant

and

Gabriel Musyoki Gathoni

Respondent

Ruling

1. Before me is an application brought by way of notice of motiondated July 19, 2021 and filed under section 3A, 79G, and 95 of the Civil Procedure Act (cap 21) and order 22 rule 22, order 42 rules 4,6, and 7 and order 50 rule 6 as well as order 51 rule 1and 3 of the Civil Procedure Rules2010.

2. The application has five (5) prayers, some of which have been spent as follows-1)(Spent)2)(Spent)3)That the court be pleased to order a stay of execution of the judgment delivered by the trial court on May 25, 2021pending hearing and determination of the appeal herein.4)That the appellant/applicant be allowed to furnish the court with bank guarantee as security pending the hearing and determination of the appeal.5)That the costs of the application abide the outcome of the appeal.

3. The application has grounds on the face of the notice of motion that the appeal is an arguable appeal with high chances of success, that the applicants are apprehensive that if stay orders are not granted by the court, the respondent will swiftly move for execution of the judgment sum, that the means of the decree holder is unknown and that the sums paid might not be recoverable in case the appeal succeeds, and that the applicants are willing to provide a bank guarantee from Diamond Trust Bank Ltd for the decretal amount.

4. The application was filed with a supporting affidavit sworn on July 19, 2021by Kelvin Ngure the Legal Officer of Directline Assurance Co Ltd the insurers of the subject motor vehicle herein, which affidavit amplifies the grounds of the application.

5. The application has been opposed through a replying affidavit sworn on October 4, 2021by Gabriel Musyoki Ketoni the respondent, in which it was deponed that the suit was filed on September 20, 2019, that judgment was entered in which liability against the appellants was determined at 100%, that the applicants have not satisfied the requirements under order 42 of the Civil Procedure Rules for grant of orders of stay of execution, and that the respondent is entitled to the fruits of his judgment and that currently he has to go for medical checkups due to the injuries suffered in the accident, which is costly.

6. The application was canvassed through filing of written submissions. In this regard, I have perused and considered the submissions filed by Kimondo Gachoka & Company for the applicants, and those filed by Kyalo, Muia &company for the respondent.

7. This being an application for stay of execution of judgment or decree, it is governed by the provisions of order 42 rule 6of the Civil Procedure Rules, especially rule 6(2) 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; andb)Such security as the court orders for the performance of such decree or orders of stay ultimately binding on him has been given by the applicant.

8. From the circumstances and facts placed before me in this application, I am of the view that the application herein was filed without unreasonable delay.

9. Will the applicant suffer substantial loss if the stay orders sought are not granted? On this, I note that the judgment herein is for a money decree. The applicants are apprehensive that if the money is paid to the respondent, it might not be recovered if the appeal succeeds.

10. Having seen the memorandum of appeal, my view is that the appeal is arguable. I note that, the financial means of the respondent is not known.

11. In the above circumstances, I find that the applicant might suffer substantial loss if the decretal amount is paid now and the amount is not repaid if appeal succeeds. However, as the appeal is basically on quantum of damages, I will grant stay of execution subject to payment of part of the decretal sum.

12. As for the requirement of the applicant providing security, I note that the applicant has offered to provide a bank guarantee. However, in my view part payment of the decretal amount to the respondent serves as adequate security.

13. For the above reasons, I allow the application and grant orders as follows –i)Stay of execution of judgment or decree herein is granted pending determination of the appeal.ii)The above stay of execution is however subject to the applicant paying the respondent through counsel part of the decretal amount Kshs 500,000 within 60 days from today otherwise the stay orders granted in (i) above will automatically lapse.iii)The costs of the application will abide the outcome of the appeal.

DELIVERED, SIGNED & DATED THIS 9TH DAY OF JUNE 2022, IN OPEN COURT AT MAKUENI.………………………………….George DuluJudge