Kisilu & another v Mukeku [2022] KEHC 9811 (KLR)

Kisilu & another v Mukeku (Civil Appeal E020 of 2020) [2022] KEHC 9811 (KLR) (5 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9811 (KLR)

Republic of Kenya

In the High Court at Makueni

Civil Appeal E020 of 2020

GMA Dulu, J

July 5, 2022

Between

Danson Kisilu

1st Appellant

Jane Wambua

2nd Appellant

and

Sammy Wambua Mukeku

Respondent

Ruling

1. Before me is an application dated 16/02/2021 filed by two applicants under section 1A, 1B and 3A of the Civil Procedure Act (Cap 21), and Orders 42 Rule 6(1) and (6), 22(22) and 51(1) of the Civil Procedure Rules through counsel M.N.M advocates LLP, seeking five (5) orders two (2) of which have been spent as follows –1. (Spent)2. (Spent)3. That the court be pleased to issue orders for stay of execution of the judgment/decree in this matter pursuant to a ruling delivered by the court in Makueni Cmcc No. 96 of 2018 on 25/11/2020 pending hearing and determination of appeal.4. That in the alternative this court in its appellate jurisdiction be pleased to grant temporary injunction barring execution against the appellant on such terms it may deem fit.5. That the costs of the application be provided for.

2. The application has grounds on the face of the Notice of Motion that the applicant is dissatisfied with the court’s ruling and has appealed, that the respondent has threatened to execute the judgment, and that the appeal has very high probability of success, and the appeal will be rendered nugatory if the stay orders sought are not granted.

3. The application was filed with a supporting affidavit sworn on 16th February 2021 by Danson Kisilu one of the applicants in which it was deponed that judgment was entered on 25/11/2020 in favour of the plaintiff, and that though an application for stay of execution was filed on 13/01/2021 no stay orders were issued, thus exposing the applicants to risk of execution.

4. The application has been opposed through a replying affidavit sworn by the respondent Sammy Wambua Mukeku on 1st March 2021, in which it was deponed that no memorandum or record of appeal had been served on the respondent or his advocate, that there was inordinate delay in filing the application as the stay period expired on 25/12/2020, that an application has already been filed in the trial court seeking similar orders thus the present application has to be dismissed in terms of section 7 of the Civil Procedure Rules, that there was no ruling delivered on 25/11/2020 as alleged, and that if this court finds merits in the application the amount of award be released to the respondent, and the balance deposited in court within a specified time.

5. The respondent also filed a Preliminary Objection to the application which was dismissed by this court.

6. The application was canvassed through filing of written submissions. In this regard, I have perused and considered the written submissions filed by M.N.M advocates LLP for the applicants and those filed by Thomas Geoffrey Onyancha & company advocates for the respondents.

7. This is an application for stay of execution of judgment or decree. It is thus governed by the provisions of Order 42 Rule 6(2) of the Civil Procedure Rules.

8. It has not been contested in documents filed herein that judgment was delivered on 25/11/2020 and stay of 30 days was granted by the trial court. This application was filed on 16/02/2021. In my view, the application was filed without unreasonable delay.

9. Will the applicants suffer substantial loss if the stay orders sought herein are not granted? The applicants’ counsel has relied on the case of Jason Ngumba Kagu & 2 Others –vs- Intra Africa Assurance Co. Ltd (2014) eKLR. In the present case, what is being contested on appeal is the award of damages Kshs.1. 5 million arising from death caused in a road traffic accident.

10. The trial court found the respondents fully (100%) to blame for the accident. The grounds of appeal are both against liability and negligence. From the facts of the case, in my view, the appellants stand to suffer substantial loss only if the whole amount awarded is paid and not recovered on appeal. Thus I will grant stay only to the extent that the appellants pay part of the decretal amount to the respondent.

11. With regard to security, I find that the part of the decretal amount paid by the appellants/applicants will be sufficient security.

12. Consequently and for the above reasons, I order as follows –1. I grant stay of execution of judgment or decree herein pending determination of appeal.2. The stay herein granted is however subject to the applicants paying the respondent through counsel part of the decretal amount Kshs.300,000/= within 60 days from today.3. In default of (2) above, the stay of execution orders hereby granted will automatically lapse.4. The costs of the application will abide the results of the appeal.

DELIVERED, SIGNED & DATED THIS 5TH DAY OF JULY, 2022, IN OPEN COURT AT MAKUENI..............................GEORGE DULUJUDGE