Pwani Oil Products Ltd v Jacinta Katungwa Ngumi [2022] KEHC 1383 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MAKUENI

HCCA NO. E042 OF 2021

PWANI OIL PRODUCTS LTD................................................................APPELLANT/APPLICANT

-VERSUS-

JACINTA KATUNGWA NGUMI...............................................................................RESPONDENT

RULING

1.   Before me is an application brought by way of Notice of Motion dated 21st July 2021 under section 3A of the Civil Procedure Act (cap.21) and Order 42 Rule 6(1) of the Civil Procedure Rules, seeking four orders two of which have been spent as follows –

1) (spent)

2) (spent)

3) That the applicant be granted stay of execution pending hearing and determination of the Makueni Appeal No. 42 of 2021 – Pwani Oil Products Ltd –vs- Jacinta Katungwa Ngumi.

4) That the costs of the application be provided for.

2.   The application was filed with a supporting affidavit sworn on 21st July 2021 by Geoffrey Kilonzo advocate for the applicant in which it was deponed that the applicant was granted 30 days stay of execution after judgment which had lapsed on 18/7/2021, and that the appeal herein has high chances of success, and that the general damages award herein of Kshs.600,000/= amounted to a miscarriage of justice and was unfair, and contrary to awards for similar injuries.

3.   The application has been opposed through a replying affidavit sworn on 3rd July 2021 by the respondent Jacinta Katungwa Ngumi in which, it was deponed that even if the stay orders sought are not granted, there will be no prejudice suffered by the applicant who has not demonstrated the kind of substantial loss that they will suffer if stay is not granted. It was also deponed that as the appeal was on quantum of damages only, half of the decretal amount should be released to the respondent, and the other half deposited in court, if stay orders are to be granted.

4.   The application was canvassed by way of filing written submissions. In this regard, I have perused and considered the submissions filed by the applicant’s counsel Wambua Kilonzo and those filed by the respondent’s counsel Waiganjo Wachira and company.

5.   This being an application for stay of execution of judgment or decree pending appeal, Order 42 Rule 6(2) of the Civil Procedure Rules is relevant. Several court cases have dealt with the considerations to be taken by the court in dealing with such an application. In my view it will suffice if I  cite the case of Butt –vs- Rent Restriction Tribunal (1979) KLR – in which the court emphasized that the court has wide discretion to grant stay of execution of judgment  in order to do justice, and to a  void rendering an appeal nugatory should  the court on appeal reverse the trial court’s decision.

6.   In the present case, I note that the appeal herein is only on quantum of damages as liability was agreed to and recorded in the trial court by consent. It is said in the application herein, that the award of general damages was too high and unfair, thus the present application for stay of execution of judgment pending appeal.

7.   In considering the application, I find that the application herein was filed without unreasonable delay. In my view, the applicant has satisfied that legal requirement.

8.   On whether the applicant might suffer substantial loss if stay is not granted, in my view, the answer is in the affirmative as they might find it difficult to recover the whole amount paid, if their appeal succeeds. However, since the appeal is only on quantum of damages, I will grant stay orders subject to the applicant paying the respondent part of the decretal amount.

9.   As for the applicant providing security, I find that the part payment of the decretal amount to be ordered herein, if made, is satisfactory security provided by the applicant.

10. Consequently, and for the above reasons, I order as follows –

1) I grant stay of execution of decree or judgment herein pending hearing and determination of appeal.

2) The stay of execution order herein granted is however subject to the applicant paying the respondent through counsel part of the decretal amount Kshs.300,000/= within 30 days from today.

3) In default of payment in (2) above, the stay of execution order herein granted will automatically lapse and be of no effect.

4) The costs of the application will follow the result in the appeal.

DELIVERED, SIGNED & DATED THIS 15TH DAY OF MARCH, 2022, IN OPEN COURT AT MAKUENI.

...........................

GEORGE DULU

JUDGE