Omariba v Njeri & another (Suing as administrators in the Estate of Alex Chau Ndung'u - Deceased) [2022] KEHC 11537 (KLR)

Omariba v Njeri & another (Suing as administrators in the Estate of Alex Chau Ndung'u - Deceased) (Civil Appeal E182 of 2022) [2022] KEHC 11537 (KLR) (Civ) (21 July 2022) (Ruling)

Neutral citation: [2022] KEHC 11537 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E182 of 2022

JN Mulwa, J

July 21, 2022

Between

Clifford Otundo Omariba

Appellant

and

Judy Muthoni Njeri

1st Respondent

Dennis Ndung'u Chau

2nd Respondent

Suing as administrators in the Estate of Alex Chau Ndung'u - Deceased

Ruling

1. Before the court is a Notice of Motion dated April 6, 2022 brought by the appellant under Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rulesand all other enabling provisions of the Law. The appellant is seeking a stay of execution of the judgment delivered in Milimani CMCC E5198 of 2020: Judy Muthoni Njeri & Dennis Ndung'u Chau (Suing as Administrators in the estate of Alex Chau Ndung'u- Deceased) v Clifford Otundo Omariba pending the hearing and determination of the Appeal herein.

2. The Application is supported by the appellant’s affidavit in which he avers that the appeal has high chances of success and there is a risk that it may be rendered nugatory if stay is not granted. He also avers that he is ready and willing to provide security for the decretal sum by depositing the same in an account in the joint names of the parties’ advocates. Lastly, he urges that the prayer be granted in the interest of justice.

3. In opposition, the respondents filed a joint replying affidavit stating that the lower court judgment was delivered on February 28, 2022 against the Appellant and they were awarded general damages in the sum of Kshs. 603,870/= and not Kshs. 970,000 as alleged by the appellant in his Memorandum of Appeal. They contended that the appellant has quoted a non-existent figure with the intent of seeking mercy from this court which renders his appeal fatally defective. Further, they contended that the present application is intended to delay the expeditious the completion of case and to deny them their fruits of a successful litigation. It was also their contention that the Applicant has not demonstrated that he will suffer any prejudice if the order is not granted. Lastly, they urged that if the court is inclined to allow the application, the Appellant should be ordered to release half of the decretal sum amounting to Kshs. 362,870/= to the Respondent’s advocate and the other half should be deposited in a joint interest earning account to be opened in the name of both advocates.

4. The application was canvassed by way of oral submissions. Learned counsel for the appellant, Ms. Ochieng, submitted that the application should be allowed as the appellant has satisfied all the conditions necessary for the grant of stay pending appeal. On the other hand, Mr. Kagura advocate for therespondent maintained that the application cannot stand since there is no proper appeal on record. He argued that no efforts have been made to amend the Memorandum of Appeal so as to indicate the correct amount awarded to the Respondents by the trial court. In his view therefore the application should be dismissed with costs.

5. To begin with, the appeal herein and by extension the present application cannot be rendered defective simply because the appellant indicated an erroneous figure in his Memorandum of Appeal. Doing so will be against the spirit of article 159 (2) (d) of the Constitution which obligates this court not to pay undue regard to procedural technicalities. The error can still be amended before the appeal is set down for hearing.

6. In the present application, it is evident that the only issue in contention is the nature and extent of the security that should be provided by the appellant for the performance of any decree that may eventually be binding on him. It is however regrettable that neither party annexed a copy of the impugned judgment to the affidavits to enable the court appreciate the contents of the decision in determining the merits of the present application. The court cannot therefore ascertain how liability was apportioned by the trial court so as to determine whether or not any portion of the decretal sum can be paid to the respondents pending the determination of the appeal. However, the appellant has expressed his willingness to deposit the decretal sum in an interest earning account as security.

7. For the foregoing, the Appellant’s application dated April 6, 2022 is hereby allowed in the following terms:(1)There shall be a stay of execution of the judgment and decree in Milimani CMCC E5198 of 2020: Judy Muthoni Njeri & Dennis Ndung'u Chau (Suing as Administrators in the estate of Alex Chau Ndung'u- Deceased) v Clifford Otundo Omariba pending the hearing and determination of this appeal, subject to the entire judgment sum being deposited in a joint interest earning account in the names of the parties’ advocates within 30 days from the date of this ruling.(2)In default, the stay shall automatically lapse and execution shall issue.(3)The Appellant shall bear the costs of this application.(4)On the progression of the appeal, the appellant is directed to file the Record of Appeal within sixty (60) days of this ruling and return for Mentionon October 6, 2022 to confirm the status of the same.Orders accordingly.

DATED SIGNED AND DELIVERED AT MILIMANI THIS 21ST DAY OF JULY 2022. J.N.MULWAJUDGE.