Njenga v Kitaka [2022] KEHC 10006 (KLR)

Njenga v Kitaka (Civil Appeal E008 of 2021) [2022] KEHC 10006 (KLR) (12 May 2022) (Ruling)

Neutral citation: [2022] KEHC 10006 (KLR)

Republic of Kenya

In the High Court at Makueni

Civil Appeal E008 of 2021

GMA Dulu, J

May 12, 2022

Between

James Kamau Njenga

Applicant

and

Judith Beth Kitaka

Respondent

Ruling

1. This is an application by way of Notice of Motion dated 26th March 2021 brought under section 3A, 75G and 95 of the Civil Procedure Act (Cap. 21), and Order 22 Rule 22 and Order 42 Rule 6, Order 50 Rule 6, and Order 51 Rules 1 and 3 of the Civil Procedure Rules.

2. The applicant seeks a number of 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 appellant’s/applicant’s appeal filed in the High Court of Kenya – Machakos (should be Makueni) as Civil Appeal No. 8 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 general damages of Kshs.190,000/= and special damages of Kshs.3,550/= had been awarded by the trial court on January 29, 2021, that the appellant had now filed an appeal, and that the appeal will be rendered nugatory if the appeal is successful and the decretal amount not refunded by the respondent.

4. The application was filed with a supporting affidavit sworn by James K. Njenga but not dated. I will not rely on this undated affidavit, as it is defective.

5. The application is opposed through a replying affidavit sworn on April 20, 2021by Judith Beth Kitaka the respondent, in which it is deponed that the applicant has not satisfied the conditions for grant of stay of execution of judgment or decree, and has failed to demonstrate substantial loss that they stand to suffer if stay orders sought are not granted.

6. The application was canvassed through filing of written submissions. In this regard, I have perused and considered the written submissions filed by Kimondo Gachoka & company for the appellant/applicant and the submissions filed by Waiganjo Wachira & co for the respondent. I note that both counsel for the parties relied on decided court case authorities.

7. This being an application for stay of execution of judgment or decree, it is governed by the provisions of Order 42 Rule 6(2) of the Civil Procedure Rules. I note that though section 79(G) of the Civil Procedure Act (Cap. 21) was cited, there is no prayer for leave to appeal out of time.

8. The considerations for a court in determining an application for stay of execution of judgment or decree are -a)Whether the application has been made without unreasonable delay.b)Whether substantial loss may result to the applicant if stay orders are not granted.c)Whether the applicant has provided or offered to provide security for court orders that might ultimately be binding on him.

9. This is a money decree and from the facts disclosed to me in the application, the financial means of the respondent are not known. I thus find that there is possibility of substantial loss to be suffered by the applicant if the amount paid to the respondent is not ultimately recovered if the appeal on quantum of damages succeeds.

10. With regard to delay in filing the application, I note that the application was filed during the period of the Covid-19 pandemic anxiety. From the facts disclosed, I do not see any unreasonable delay in filing the application.

11. With regard to provision of security, though I will grant stay of execution, I will order the appellant to pay part of the decretal amount as the appeal herein is only on quantum of damages. In my view, such part payment of the decretal sum by the applicant will be sufficient security. I am not persuaded to adopt the Bank guarantee proposal of the applicant.

12. Consequently, I order as follows:-1)Stay of execution of judgment or decree is granted pending determination of appeal.2)The above stay of execution is subject to the appellant/applicant paying the respondent through counsel part of the decretal amount Kshs.80,000/= within 60 days from today.3)In default of (2) above, the stay of execution granted herein will automatically lapse.4)The costs of the application will follow the decision in the appeal.

DELIVERED, SIGNED & DATED THIS 12TH DAY OF MAY, 2022, IN OPEN COURT AT MAKUENI.………………………………….George DuluJudge