REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

HIGH COURT CIVIL APPEAL NO. E178 OF 2021

KALA ABASS .................................................APPELLANT

VERSUS

BGH (Suing as legal representative of the estate of

WGH –DECEASED .............................RESPONDENT 

RULING

1.   By Notice of Motion dated 24/12/2021 the Appellant seeks a stay of execution of the Judgment and decree of the trial court in Isiolo CMCC No. 79 of 2015 wherein the court awarded damages in a fatal accident claim at Ksh. 1,680,000/= together with costs and interest at court rates on 30/11/2021.

2.   The Appellant considers the award inordinately high and a wholly erroneous estimate of the loss and damage suffered by the plaintiff in respect of the death therein of a child aged 15 years. The appellant has offered security in terms of a Bank Guarantee for the amount, reasoning that the respondent has not disclosed or furnished any documentary evidence of her financial standing, and, consequently, the appellant would suffer irreparable substantial loss if the respondent is paid and, if the appeal is successful, the appellant is not able to recover the same.

3.   The Respondent by Replying Affidavit of 3/2/2022 points to the appellant’s offer by submissions in the trial court for Ksh. 710,000/= as the appropriate award; the fact of appeal being on question only, which the Memorandum of Appeal seeks reassessment, and urges that the application be dismissed as “aimed at delaying the enjoyment of the fruits of successful litigation by the Respondent...”

4.   The court has considered the application for stay of execution and considers it to be governed by a balance of the appellant’s right of appeal, which is undoubted, and the duty of the court to ensure that if the appeal is successful, it should not be rendered nugatory by failure to recover the amounts paid to the Respondent in the meantime, if she be unable to refund, on the one hand. On the other hand is the right of the successful party to enjoy the fruits of her judgment, especially in personal accident claims, where the liability is not challenged and the only issue on appeal is the assessment of damages.

5.   A fair balance in the matter appears to me to be the payment of a proportion of the decretal sum to cater for the intermediate needs of the respondent while securing the payment, or refund, as the case may be of the balance of the decretal sum. I consider the payment of court of Ksh. 680,000/= to the Respondent and the deposit of a Bank Guarantee with the court and the Respondent for the payment of the Balance of the decretal sum costs and interest as  may be in adjudged due upon the hearing and determination of the appeal. The  court considers that, in view of the nature of the fatal loss  and damage in this case, the sum of Ksh. 680,000/= ordered to be paid by the appellant  to the respondent shall be on the lower side of any  assessment eventually arrived at by the appeal court.

ORDERS

6.   Accordingly, for the reasons set out above, the court makes the following orders:- 

1)   A stay of execution of the judgment and decree of the trial court is granted as prayed in the Notice of Motion on the following conditions.

2)   The Appellant shall pay to the Respondent the sum of Ksh. 680,000/= with 14 days.

3)   The appellant shall deposit with the court and the respondent a Bank Guarantee for the payment of the balance of the Decretal sum together with costs and interest as may be adjudged due from the appellant upon the hearing and determination of the appeal.

4)   In default of any of the conditions in (2) and (3) above, the order for stay of execution granted in (1) above shall lapse and be of no effect.

Orders accordingly.

DATED AND DELIVERED 17^TH DAY OF MARCH 2022.

EDWARD M. MURIITHI

JUDGE

Appearances:-

M/S Kimondo Gachoka & Co Advocates for the Appellant.

M/S Njeri Gathua & Co Advocates for the Respondent.