ANTHONY MUIKIA GICHURU v IRENE WANJIKU KAHUNYO,MAXWELL KIMACHUI &PETER; NGUGI NJERU [2011] KEHC 11 (KLR)

Editorial Summary

1. Civil Appeal

2. Civil Practice and Procedure

3. Subject of Subordinate court case

TORT

3. 1           Running down cause.

3. 2           Passenger/female adult

3. 3           Trial court enters judgment in favour of original

plaintiff

3. 4           Original 3rd defendant Anthony Muikia Gichuru

files appeal on issue of liability only on

19th July 2011.

3. 5           Prays for stay of execution of the magistrate’s

judgment.

4. Application for stay of execution:

Notice of Motion 14th November 2011

4. 1           Appellant not liable for accident.

4. 2           Would suffer irreparable loss if

execution is carried out.

5. In reply:

5. 1           Half the decretal sum be paid to respondent

Original plaintiff pending appeal.

5. 2           Money decree

6. Held:

Application for stay of execution granted.

7. Case Law:

8. Advocates:

i)     R.M. Kioko instructed by M/s Ndonye & Co Advocates for

appellant/original 3rd defendant

ii)    J.N. Abuga instructed by J N Abuga& Co Advocates for 1st respondent/original plaintiff

iii)   Wanjiku Nduati instructed by Wanjiku Maina & Co Advoctes for 2nd respondent/original 2nd defendant

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

CIVIL APPEAL NO. 337 OF 2011

ANTHONY MUIKIA GICHURU …………….……..........................................…….… APPELLANT/

ORIGINAL 3RD DEFENDANT

VERSUS

IRENE WANJIKU KAHUNYO……………………..................................……….. RESPONDENT/

ORIGINAL PLAINTIFF

MAXWELL KIMACHUI …………………….....................................………………. RESPONDENT/

ORIGINAL 1ST DEFENDANT

PETER NGUGI NJERU ……………..….................................………………..…. RESPONDENT/

ORIGINAL 2ND DEFENDANT

(Being an appeal from the judgment of Hon. I. Ireri (RM) delivered on 21st June 2011 in CMCC 305/09 at Limuru Court)

R U L I N G

Application for Stay of Execution

Dated 14th November 2011

I.INTRODUCTION

1. The original suit before the subordinate court arises out of TORT. A motor vehicle accident occurred in which Irene Wanjiku Kahunyo, a female adult was a fare paying passenger.

2. The Hon. Trial Magistrate court at Limuru awarded her damages as compensation; against the appellant/original 3rd defendant and the applicant herein together with two other respondents original defendant 1 & 2.

3. Being aggrieved, the appellant original 3rd defendant filed appeal to this High Court on 19th July 2011. By an application dated

14th November 2011, he prayed for stay of execution of the subordinate court’s judgment.

IIAPPLICATION 14TH NOVEMBER 2011

4. This application for stay of execution was brought after a previous order of stay of execution of 30 days had been issued by the subordinate courts.

5. It sought stay pending appeal. There has been a four months wait between the time of filing appeal. The applicant explained that this was due to the advocate attempting to review the application at the magistrate’s court but found the original file was not available.

6. In his submissions, he stated that the only issue that would be taken up is that of liability. The Hon. Trial Magistrate erred as such he should never have been found liable for the accident and at all.

7. This means if the appellate court upholds his argument on appeal, then he would not pay the decretal sum at all.

8. The application was opposed. The original plaintiff respondent No. 1 in this appeal prays that the half of the decretal sum be paid to her pending appeal. The balance be deposited in an interest earning account in the joint names of the advocate.

9. The compliance of or not, Order 1 r 21 Civil Procedure Rules was considered by the trial court and taken into account. The appellant is liable to pay the decretal sum with others.

10. The application before this court for stay of execution pending appeal has merits. The issue of liability is a matter sought to be appealed against. If the appellant is successful he would suffer loss.

11. The other respondents were not in court due to the issue of their insurance company which is under a moratorium.

12. I would grant the application for stay of execution. I order that the decretal sum be deposited in the joint interest earning account in the names of the two advocates. That in default of so doing within 30 days, the decretal sum be deposited to court.

DATED THIS 26TH DAY OF MARCH 2011 AT NAIROBI

M.A. ANG’AWA

JUDGE

Advocates:

i)     R.M. Kioko instructed by M/s Ndonye & Co Advocates for

appellant/original 3rd defendant

ii)    J.N. Abuga instructed by J N Abuga& Co Advocates for

1st respondent/original plaintiff

iii)   Wanjiku Nduati instructed by Wanjiku Maina & Co Advoctes for

2nd respondent/original 2nd defendant