Bwire v Gathii (Civil Appeal E594 of 2022)  KEHC 16279 (KLR) (15 December 2022) (Ruling)
Neutral citation:  KEHC 16279 (KLR)
Republic of Kenya
Civil Appeal E594 of 2022
JN Mulwa, J
December 15, 2022
Miller Wanjala Bwire
Stephen Kagwathii Gathii
1.By the application dated August 2, 2022, the appellant sought orders of stay of execution of the judgment and decree delivered on the 22nd of July 2022 by the trial court pending hearing and determination of the appeal filed hereof. Provisions of order 42 rule 6 of the Civil Procedure Rules, and sections 1A, 1B and 3A of the Act were provoked to support the application.
2.To support the application, an affidavit was sworn by the appellant on even date and grounds stated at the face of the application.In opposing the application, one Karanja Muchiri describing himself as the Legal claims officer at CIC swore the replying affidavit on the 30th of September 2022. In response, the appellant swore a further affidavit on the 30th of September 2022.
3.I have perused and considered the affidavits for and in opposition, and oral arguments tendered before me on the 24th of October 2022 by both parties’ Advocates.The impugned judgment was delivered on the 22nd of July 2022 for Kshs 382,970/- by the Small Claims Court’s adjudicator. I have also perused the grounds of appeal as stated at the Memorandum of Appeal dated 2nd August 2022 and the judgment.
4.In his oral submissions, the applicant urged that there was serious miscarriage of justice as the special damages awarded were not pleaded with particularity nor strictly proved, hence matters of law as stated at section 38 of the Small Claims Court Act.
5.It is further submitted for the applicant that, if the respondent’s financial ability is unknown and if the decretal money is paid to him, should the appeal succeed, it would not be possible to recover the same hence substantial loss is likely to occur to the appellant.To urge for the prayers sought, an offer to comply with any orders as the court may determine on security has been given.
6.On the other hand, the respondent submits that the suit before the trial court was filed by the insurance company (CIC) under the subrogation doctrine and therefore the insurance company would be able to pay the decretal sum back if the appeal succeeds.
7.This is a material damage claim. There is no gainsaying that the insurance company - CIC – would be unable to repay the sum of Kshs 382,970/- should its appeal not be successful. Hence, I am not persuaded that any substantial loss would be occasioned to the appellant – rule 6(2) of order 42 Civil Procedure Rules. The Respondent proposes that 50% of the decretal sum be paid out to the respondent and the other 50% be deposited in court pending hearing and determination of the appeal.
8.Having considered the well-known parameters upon which an order of stay pending appeal is premised, I am persuaded to allow the application dated August 2, 2022 upon the following conditions:1.That the applicant/appellant do pay 50% of the decretal sum to the Respondent through its advocates within 21 days of this ruling.2.That the balance of 50% shall await the outcome of appeal.3.To progress the appeal, the appellant shall file the record of appeal within 60 days of this ruling4.In default of (1) above, the stay order shall automatically lapse.
DATED, DELIVERED AND SIGNED IN NAIROBI THIS 15TH DAY OF DECEMBER 2022.J. N. MULWAJUDGE