James Ngethe v Margaret Akhonya & Peter Lutta [2010] KEHC 2755 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KAKAMEGA

Civil Appeal 93 of 2009

JAMES NGETHE ::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT

V E R S U S

MARGARET AKHONYA :::::::::::::::::::::::::::::: 1STRESPONDENT

PETER LUTTA :::::::::::::::::::::::::::::::::::::::::::: 2ND RESPONDENT

R U L I N G

In his application dated 23rd September, 2009 the applicant seeks an order of stay of execution in Mumias Civil Case Number 816 of 2005 pending the hearing and determination this appeal.The application is supported by the applicant’s affidavit sworn on 23rd September, 2009.

Mr. Manyoni, counsel for the applicant submitted that the respondent had obtained warrants of execution and unless orders of stay are granted execution would proceed.A memorandum of Appeal has been filed and the lower court ordered that the applicant deposits the entire decretal sum in court as a condition to a stay of execution but the applicant was unable to fulfill that condition.

Miss Kaniali for the respondent opposed the application.Counsel submitted that already the applicant is enjoying stay of execution orders issued by the lower court.The applicant was to furnish security and in default execution was to issue.Counsel further submitted that the appellant has settled other judgments emanating from the same accident.

Judgment was delivered on 21st October, 2008 whereby the respondent was awarded KShs.600,000/= as damages plus costs.The memorandum of Appeal was filed on 23rd September, 2009, a period of 11 months.It’s not indicated in the supporting affidavit or in submissions by counsel for the applicant whether leave to appeal out of time was granted.The applicant contends that if an order of stay is not granted his appeal will be rendered nugatory.

The trial court granted the applicant orders of stay of execution on condition that the decretal sum is deposited in court by 20th July, 2009. Order 41 Rule 4 of the Civil Procedure Act empowers the court to stay execution and to give conditions for such orders if need be.The applicant failed to comply with the orders of the lower court.The appeal herein was filed out of time and there is no indication that leave of this court was granted before the appeal was filed.

It is the appellant’s right to pursue an appeal but he should use the correct procedure.The applicant was to deposit the decretal sum by 20th July, 2009. Over six (6) months have elapsed and yet he has not complied with that order.The main contention in the intended appeal is on liability and the damages awarded.

For the interest of justice and in order to allow the appellant pursue his appeal, I do grant the application dated 23rd September, 2009 in terms of prayer (iii) on condition that the applicant provides security by depositing KShs.400,000/= in court within 45 days from the date of delivering this ruling.In default execution to issue.

SAID J. CHITEMBWE

J U D G E

Delivered, dated and counter-signed by the Hon. Justice Isaac Lenaola at Kakamega this 15th day of April,2010

ISAAC LENAOLA

J U D G E