Baloch Faizal & another v Elloy Kawira Nthiiri [2012] KEHC 4661 (KLR)

Editorial Summary

1. Civil Appeal

2. Civil Practice and Procedure

a) Application for Stay of Execution pending appeal

3. Subject of Subordinate Court Case:-

TORT

3. 1           Running down cause

3. 2           Pedestrian run down

3. 3           Judgement of trial court

Liability 90%: 10%Quantum

General damages

Pain and suffering

Ksh. 400,000/-

Less 10%                         40,000/-

ContributionKsh. 360,000/-

4. Application 10TH February 2012

i)             Stay of execution

ii)            Issue to be raised in appeal would be on

a)            Liability

b)            Quantum – inordinately high

c)            Issue of ownership of vehicle

iii)          Chances of success.

5. In reply:

No objection to stay on condition

Full decretal sum is deposited

6. Held:

i)             Stay of execution.

ii)            Condition half decretal sumbe deposited.

7. Case Law:

8. Advocates:

i)A.N. Munga instructed by M/s Mbigi Njuguna & Co Advocates for appellant/original defendant

ii)P.K. Njiiri instructed by   M/s P.K. Njiiri & Co Advocates for respondent/original plaintiff

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

CIVIL APPEAL NO. 21 OF 2012

BALOCH FAISAL &ANOTHER ….................………….…APPELLANTS/ORIGINAL

RESPONDENT

VERSUS

ELLOY KAWIRA NTHIIRI ………...……….RESPONDENT/ORIGINAL PLAINTIFF

(Being an appeal from the Judgment of Hon. Ndeda Esq, Senior Principal Magistrate delivered on 7th December 2011 in CMCC 525 of 2009 at Thika Law Courts)

R U L I N G

Application for stay of execution

Dated 10th February 2012

I.BACKGROUND

1. The respondent, original plaintiff was, on the 30th January 2007 as a pedestrian, run down by a motor vehicle and sustained soft tissue injuries.

2. A case in the subordinate court was filed by the respondent in which the trial court held in its judgment that the appellant original defendant were liable for the said accident at 90% whilst the respondent at 10%.

3. An award for the soft tissue injuries was made for pain and suffering sustained at Ksh. 40,000/- less 10% contribution Ksh. 40,000/- Total Ksh. 360,000/=

4. Being dissatisfied, the two appellants filed appeal, by an application of 10th February 2012, they prayed for an application of stay of execution.

IIAPPLICATION 10TH FEBRUARY 2012

5. The arguments put forward that they will be raising the issue of liability and quantum on appeal, the quantum was inordinately high. The issue of ownership of the vehicle would also be raised.

6. The chances of success of the appeal was high.

7. In reply, the respondent stated that there was no objection to there being a stay of execution but that the whole sum of Ksh. 360,000/- be deposited to court. The appellant prays for half of the sum be deposited.

IIIFINDINGS

8. The application before me was bought without delay.

9. The probability of success of the appeal is arguable.

10. The security offered by the appellant was a deposit of half of the decretal sum.

11. I would find that this is a correct case to issue orders of stay of execution. The condition being that half the decretal sum be deposited as security namely Ksh. 180,000/- in an interest earning account signed by both advocates within 14 days, failure to, the said sum be deposited to court.

DATED THIS 22ND DAY OF FEBRUARY 2012 AT NAIROBI

M.A. ANG’AWA

JUDGE

Advocates:

i)A.N. Munga instructed by M/s Mbigi Njuguna & Co Advocates for appellant/original defendant

ii)P.K. Njiiri instructed by   M/s P.K. Njiiri & Co Advocates for respondent/original plaintiff