Mugo v Wambua [2022] KEHC 11235 (KLR)

Mugo v Wambua (Civil Appeal E035 of 2021) [2022] KEHC 11235 (KLR) (11 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11235 (KLR)

Republic of Kenya

In the High Court at Makueni

Civil Appeal E035 of 2021

GMA Dulu, J

May 11, 2022

Between

Davis Mugo

Applicant

and

Cyrus Muteti Wambua

Respondent

Ruling

1. Before me is an application by way of Notice of Motion dated 3rd June 2021 brought under Order 22 Rule 22, Order 42 Rule 4 and 6 Order 51 Rules 1 and 3 of the Civil Procedure Rules 2010, as well as section 3 and 3A of the Civil Procedure Act (Cap. 21).

2. The application seeks five (5) orders some of which have been spent as follows –1)(Spent)2)(Spent)3)That the court be pleased to stay the execution of the judgment/decree obtained herein pending the hearing and determination of the applicant/appellant’s appeal filed in the High Court of Kenya at Makueni Civil Appeal No. E035 of 2021. 4)(Spent)5)That the costs of the application abide the outcome of the appeal.

3. The application has grounds on the face of the Notice of Motion that judgment having been entered, the applicant has filed an appeal which has high chances of success and that the applicant is apprehensive that if the stay orders sought are not granted the applicant will suffer irreparable loss and damage.

4. The application was filed with a supporting affidavit sworn by Kelvin Ngure the Deputy Claims Manager of Directline Assurance Co. Ltd the insurers of the subject motor vehicle on 3rd June 2021. The affidavit amplifies the grounds of the application.

5. The application has been opposed through a replying affidavit sworn on 25th June 2021 by Cyrus Muteti Wambua the respondent, in which it is deponed that stay of execution orders are discretionary and that mere filing of an appeal is not sufficient ground to obtain orders for stay of execution. It is further deponed that the present application was merely meant to deny the respondent the enjoyment of the fruits of this judgment.

6. The application was canvassed through written submissions. In this regard, Ms. Kimondo Gachoka & company for the applicant filed submissions on October 15, 2020, while Ms. Thomas Geoffrey Onyancha & company for the respondent filed written submissions on 9th July 2021. I have perused and considered the submissions on both sides.

7. This being an application for stay of execution of judgment or decree, it is governed by the provisions of Order 42 Rule 6 of the Civil Procedure Rules which requires court decisions in such applications to be based on (a) whether substantial loss may result unless the stay is granted and the application is made without delay; and (b) the applicant has given security.

8. The application herein was filed on 3rd June 2021 while judgment was delivered on 13/5/2021. It was a period of less than one month. I find that there was no inordinate delay in bringing the application.

9. On substantial loss to be suffered by the applicant if the stay orders sought are not granted, I note that this is a money decree for general and special damages totaling Kshs.306,550/=. There is nothing on record to indicate the financial means of the respondent. In that situation therefore, I find that the applicant may suffer substantial loss if the stay orders sought are not granted, as the applicant might fail to repay the amount if the appeal succeeds and the decretal amount is reduced.

10. With regard to provision of security, the applicant has offered to provide a bank guarantee which is strongly opposed by the respondent. In my view, this court by granting a stay of execution subject to payment of part of the decretal sum, will satisfy the requirement for provision of security by the applicant.

11. Considering the facts and submissions placed before me, I allow the application based on the following orders-1)Stay of execution of decree is granted pending hearing and determination of the appeal.2)The above stay is granted subject to the applicant paying the respondent through counsel part of the decretal amount Kshs.150,000/= within 60 days from today’s date.3)If there is default in complying with (2) above, the stay orders herein granted will automatically lapse and be of no effect.4)The costs of the application will follow the results of the appeal.

DELIVERED, SIGNED & DATED THIS 11TH DAY OF MAY, 2022, IN OPEN COURT AT MAKUENI.…………………………………GEORGE DULUJUDGE