Kafanyanga v Kondowe (Civil Cause No. 802 of 1994) [1995] MWHCCiv 9 (20 November 1995)

/ BROWN KAFANYANGA . ...... . .... .. ... .. .. .. . . . ... PLAINT '- FF - and - ' ! ' I ' SENETA KONDOWE . .. . ........... . ... .... .. . .. 1ST DEFENDANT ROYAL INSURANCE INTERNATIONAL .... . ....... 2ND D~FENDANT CORAM MBALAME, J Masumba, of Cou nsel, for the plain '-.:.iff Mazoe , of Counsel, for the defend;.1.nts Chigaru, Law Cl erk R U L I N G This application i s judgement of 1otl 1. May, 1995. for a stay of execution in respect of damages awarded to the plaintiff in the sum of K35,000 in my The application is by way of summons and is supported by an affidavit the sworn by Mr . Masu mba , Counsel defendants. The bone of content -~on is the amount of the award. According to the appl~cants this should not have exceeded KlS , 000.00 . They contend that should the sum of K35,000.00 be paid to the plaintiff and should the applicants succeed in th2 appeal regarding the the plaintiff will rnost unlikely be able to quatum, repay the amount to the applicants making the appeal a nugatory. for Under Order the Suprem~ Court rule 13 of Practice an appeal does not operate as a . stay of execution . Indeed the Court does not " make a practice of depr i ving a successfuJ litigant of the fruits of his litigation and locking up funds to which mima facie he is entitled " pending an appeal . However, it is in the discretion of this Court to grant or refuse the stay In applied for . See the Ratota ( 1 897) P . 118 and 132. exercising that discrr2tion the court must consider all I I See Atkins vs G . Y. Ry the costs are paid , there the circumstances of the case prevailing. It is a good ground for stay of execution if it can be shown that if is no the damages and reasonable pr obabi 1 i ty of getting them back ·if the appeal succeeds. (1886) 2 TLR 400. Counsel for the applicant contends that since the p laintiff told the Court that he iis · not presently employed he should, therefore, be tr '.eated as a : man of no means. rather general and sweeping This is a It is not safe to suggest that. employment statement. is the· only source of income. One may not· be employed and , yet be properly remunerated from .other sources. The plaintiff said football was his only source of income at the time of the accident. It is not clear as t o what he is now doing for his living. The burden is on the applicants to show that the plaintiff is a man of straw and that he would not be able to refund the money paid . As I have said earlier on the plaintiff said football was his only source of income at the time of the accident. I have carefully considered the facts before me and the arguments advanced by both counsel. The applicants contend that if the plaintiff .is to be paid then the sum should not exceed Kl 5, o o O because that is what the damages should have been and no more. I do not quite approve of this kind of proposal as doing so would or might to some extent pre- empt the quantum of damages on appeal. on the other hand, it is long not as '; if these courts are not aware of periods • appeals take . In the circumstances I order that the plaintiff be paid .a sum of K20,000 leaving a sum of K15,000 pending the outcome of the appeal. This in an sum is to be paid interest earning account. into Court and ·invest~d the R. P. MBALAME JUDGE