Silpak Industries Limited v Nicholas Muthoka Musyoka [2017] KEHC 1347 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL 202 OF 2017

SILPAK INDUSTRIES LIMITED …….……APPELLANT

VERSUS

NICHOLAS MUTHOKA MUSYOKA ……RESPONDENT

RULING

The appeal herein follows a judgment of the lower court delivered on 3rd April, 2017.  The respondent had sued the appellant for damages resulting from injuries sustained while he was in the employment of the appellant.  The lower court decided in his favour and awarded Kshs. 1,200,000/= general damages plus Kshs. 13,500/= special damages, after having found that the appellant was 100% liable to the respondent.

Aggrieved by the said judgment the appellant filed a Memorandum of Appeal on 2nd May, 2017.  There is now before an application by way of Notice of Motion dated 5th and filed on 8th May, 2017 seeking orders of stay of execution of the lower court judgment and decree pending the hearing and determination of the appeal.  The application is brought under Sections 1A, 1B, 3A and 63 (e) of the Civil Procedure Act, Order 42 Rule 6 and Order 51 (1) of the Civil Procedure Rules.  The application is supported by an affidavit sworn by the legal officer of the insurer of the appellant. The application is opposed and there is a replying affidavit sworn by the respondent.

Both counsel have filed written submissions which I have considered.  The respondent holds a legal judgment in his favour while the appellant has a right of appeal.  In balancing the two, I have to consider compliance with the relevant legal provisions that have been cited.  The lower court judgment was delivered on 3rd April, 2017 and the application filed on 8th May, 2017.  There was no delay in the circumstances.

On substantial loss that may occur if the stay is not granted, it must be considered that just as the appellant wishes to challenge both liability and quantum, as set out in the memorandum of appeal, there is legitimate expectation that the respondent should enjoy the fruits of his judgment.

The fear of the respondent not being able to refund the decretal sum if the appeal succeeds may be well founded but at the same time, it must be considered that the entire judgement may not be set aside by the appellate court.  Indeed, in earlier submissions, the appellant had argued that an award of Kshs. 500,000/= would adequately compensate the respondent for the injuries sustained.  The appellant is ready to comply with any conditions that may be set by the court.

Balancing the interests of  both parties, I allow the application on the following terms; the appellant will pay the respondent a sum of Kshs. 500,000/= out of decretal sum and the balance thereof shall be deposited  in an interest earning account in the joint names of the advocates on record.  The said payment to the respondent and deposit shall be done within 30 days from the date of this ruling.  The costs shall be in the appeal.

Dated, signed and delivered at Nairobi this 7th Day of December, 2017

A. MBOGHOLI MSAGHA

JUDGE