MUTHUI MALUSI …………. vs TRANSAMI (K) LIMITED .. [2004] KEHC 1944 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL SUIT NO. 43 OF 2002

FLORENCE KAVUTHA MALUSI MUTHUI                      MALUSI

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PLAINTIFFS

VERSUS

TRANSAMI (K)                                                     LIMITED

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DEFENDANT

Coram:       Before Hon. Justice Mwera

Ochwa for Plaintiff/Respondent

Yalwala for Defendant/Applicant

Court Clerk – Sango

R U L I N G

The defendant’s Notice of Motion dated 31. 3.2004 was brought under Order 21 r 22, Order 41 r 4 CPR and Section 3A CPA. The main prayers were:

1. That there be a temporary stay of execution of the

judgement dated 12. 3.2004 pending the hearing and

determination of an intended appeal.

The grounds put forth were that the applicant being dissatisfied with the above said judgement had preferred an appeal beginning with filing and serving a due notice, that the liability and quantum of damages would fall to be reviewed there on the basis that the suit arising from a road accident had been seriously contested at the trial.

Mr. Yalwala told the court that if the damages put at some Sh. 1. 2 million were paid to the plaintiff/respondent, a housewife, the applicant was apprehensive that in case its appeal succeeds it would have difficulties in recovering the paid sum. And that the defendant/applicant was ready to abide with any condition regarding security to perform, which this court may impose.

Mr. Ochwa opposed the orders sought on the basis that the applicant had not demonstrated in the first place why its application had to come under a certificate of urgency in the light of the fact that steps to execute had not even been put on the ground. That the defendant, a big multinational company had not demonstrated any substantial loss it stood to suffer incase it paid up, and that it had not been shown that the plaintiff’s financial status was such that she could not repay the decretal sum in the event the intended appeal was successful. It was added however that if the court was minded to grant the orders sought then the applicant has to deposit the decretal sum in the advocate’s joint income earning account within a given period.

The view of this court is that the applicant did not justify why its application had to be certified as urgent. After the judgement in question execution was still far off with the taxation not done or a decree extracted. There is accordingly no application to execute or taking the first steps to execute. So all in all there was no justification to hustle the court when there was nothing of urgency. Only some apprehension but even that does not amount to much.

While addressing the issue of Duty Judge on 19. 2.2004 this court directed in a local Practice Note No. 1 of 2004:

“6. There will always be a judge every day to handle matters

under Certificate of Urgency, which ought to be truly urgent.”

This application hardly fell in the category of truly urgent. But be that as it may.

As regards the stay orders, this court is unable to grant them. The application has not shown what substantial loss it will suffer if the orders are not granted.

The position taken is that the plaintiff being a housewife she might not be able to refund the decretal sum if the appeal succeeds. That is not good enough. Being a housewife is not equal to being a person of straw. If the defendant sought to portray her as a person of no substance it was incumbent on it to file and serve an affidavit of means of the plaintiff. It was not enough simply to assume and claim. Prove it. In contrast the plaintiff has no duty to begin announcing her resources without them being challenged.

The court was even left wondering if it was indeed the defendant who was interested in the stay and was keen to appeal the judgement in question. It appended a letter dated 19. 3.2003, seven days after the judgement from M/s Kenindia Assurance Co. Ltd. The court was told that these are the defendant’s insurers. The letter was addressed to the defendant’s lawyers and it said in part:

“Kindly but urgently file Notice of Appeal and thereafter obtain

appropriate stay pending the determination of the appeal.”

Be that as it may. The court was told that the insurance company was the actual instructing client, who had had consultations with the defendant/applicant on the subject.

The court is thus minded to dismiss this application with costs. However if the defendant is truly minded to appeal and desires a stay in the meantime, it shall within 45 days deposit the decretal sum in both advocates’ joint income-earning account or post a banker’s guarantee of the same sum, to be approved by the Deputy Registrar.

Otherwise the application is dismissed with costs.

Delivered on 22nd April 2004.

J.W. MWERA

JUDGE