Muthoni v Kinyua (suing for the estate of Susan Kanana alias Susan Kanana (deceased) & 5 others [2022] KEHC 15818 (KLR)

Muthoni v Kinyua (suing for the estate of Susan Kanana alias Susan Kanana (deceased) & 5 others (Civil Appeal E133 of 2022) [2022] KEHC 15818 (KLR) (1 December 2022) (Ruling)

Neutral citation: [2022] KEHC 15818 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Appeal E133 of 2022

TW Cherere, J

December 1, 2022

Between

Florence Muthoni

Appellant

and

Josphat Muthuri Kinyua (suing for the estate of Susan Kanana alias Susan Kanana (deceased) & 5 others

Respondent

Ruling

1. On August 31, 2022, the court entered judgment in Githongo PMCC No 6, 7, 8, 9, 10 and 11 of 2018 respectively in favour of the respondents as against the appellant.

2. By a notice of motion dated and filed on October 28, 2022, appellant seeks orders for:1. Stay of execution of judgments and decrees in Githongo PMCC No 6, 7, 8, 9, 10 and 11 of 2018 pending the hearing and determination of this appeal

3. The notice of motion is premised on grounds among others that the appellant is aggrieved by the inordinately high damages awarded to the respondents and has filed this appeal and additionally that appellant is likely to suffer substantial loss for the respondents are not in a position to refund the decretal sum.

4. The application is also supported by an affidavit sworn by the appellant on October 28, 2022 in which she reiterates the grounds on the face of the application.

5. In opposing the application, Josphat Muthuri Kinyua, the 1st respondent by an affidavit sworn on November 22, 2022 by on his own behalf and on behalf of the other 5 respondents in which he avers that this application is meant to delay the respondents from enjoying the fruits of their judgment. It is proposed for the respondent that in the event the application is granted, ½ of the decretal sum in each case be paid to the respectiove respondent.

Analysis and Determination 6. I have considered the application in light of affidavits on record the issue for determination is whether there ought to be stay of execution of judgment in Githongo PMCC No 6, 7, 8, 9, 10 and 11 of 2018 pending the hearing and determination of the appeal.

7. It appears to me that this application was drawn and filed in a hurry for the reason that to the affidavit in support is not annexed the decrees or any document in support of the averment that decrees have been issued in favour of respondents in Githongo PMCC No 6, 7, 8, 9, 10and 11 of 2018.

8. This information was brought to the attention of the applicant’s counsel by this court’s order dated on November 1, 2022. It was expected that the applicant would file a further affidavit annexing the decrees but that was not to be

9. From the foregoing, I find that the notice of motion dated and filed on October 28, 2022, as drawn is incapable of being granted and it is disallowed.

10. It is further directed that appellant files an appeal in respect of each of the alleged decrees.

DATED IN MERU THIS 01ST DAY OF DECEMBER 2022T.W. CHEREREJUDGEAppearancesCourt Assistant - Morris KinotiFor Appellant - Mr. Muia for Munene, Wambugu & Kiplagat AdvocatesFor Respondents - Ms. Asuma for Mutembei & Kimathi Advocates