Proceedings In Magistrates’ Court Plaint
1.Vide a plaint dated 11th June, 2019 and filed on 17th July,2019, brought against the Appellant in which the Respondent claimed that at all times material to the suit, the Respondent was and is the registered owner of motor vehicle registration Number KCA 667U while the Appellant was the registered owner of motor vehicle registration number KAK 548H.
2.Averring that on or about 28/4/217 the Respondent’s motor vehicle Registration Number KCA 677U was lawfully and carefully being driven along Nairobi Mombasa Road when at Makuti area which is a few meters from Devki in Athi river Motor vehicle Registration Number KAK 548H which was negligently driven, controlled and/ or managed by the Defendant either by himself, his authorized driver, agent and/ or servant, veered off its lawful lane and hit Motor vehicle Registration Number KCA 677U causing an accident as result of which people were injured and the Respondent’s vehicle was extensively damaged. The respondent further stated that it suffered loss and has incurred expenses. The particulars of special damages were:a.Motor vehicle assessment fee 6,000/=b.Motor vehicle search 1,100/=c.Repairs 1,655,000/=Total 1,662,100/=
3.The Respondent prayed for judgment be entered in its favor against the Appellant as follows;a.Kshs 1,125,000/= for loss of userb.Special damages in the sum of Kshs 1,622,000c.Cost of this suitd.Interest on (a), (b) and (c) above.
Reply To Defence
6.The Respondent, in its reply to defence dated 11th October,2019 denied the allegations contained in the defence and particulars of negligence attributed to it. Averring that after police investigations, the driver of motor vehicle registration number KAK 548H belonging to the Appellant was to blame for causing the accident and placed the Appellant to strict proof of any allegation to the contrary. It was averred that the Appellant’s defence was a mere denial which is bad in law and an abuse of court process.
7.The matter was canvassed vide written submissions.
8.Vide judgment delivered on 28th September,2020, Hon. R.W. Gitau agreed with the Respondent and entered judgment on its favor in which the learned Magistrate entered the said judgment against the Appellant on the following terms:Repair cost Kshs. 1,655,000/=Search Kshs. 1,100/=Assessment fees Kshs. 6,000/=Loss of user Kshs. 1,125,000/=Total Kshs. 2,787,100/=
9.Vide a Notice of Motion dated 7th October,2020, the Appellant sought orders that pending the hearing and determination of the application the Honorable Court be pleased to extend stay of execution orders issued on 28/9/2020 staying execution of the judgment entered in this matter on 28/9/2020 and the resulting decree; that pending the hearing and determination of the appeal by the Appellant, this Honorable Court be pleased to grant an order of stay of execution of the judgment as well as the resulting decree delivered by this Honorable court and the cost of application be costs in the Appeal.
10.Vide the supporting affidavit dated 7th October, 2020, it was deposed that there was an existing temporary order of stay of execution issued by the court for a period of 30 days which is set to expire on 28th October, 2020 thereby exposing the Appellant to execution since the Respondent will be at liberty to enforce the judgment upon lapse of the said period; that the Appellant being aggrieved by the said judgment of the Honorable Court has lodged an appeal against the judgment at the High court and that the said appeal is arguable and with high probability of success (annexed was a copy of the memorandum of appeal); deposing that the Appellant was ready, willing and able to deposit part of the decretal amount in court as may be directed by the Honorable Court as a condition for Grant of the orders of stay of execution pending the hearing and determination of the appeal.
11.Vide replying affidavit dated 23rd October,2020, Respondent opposed the application terming the application as frivolous, vexatious and an abuse of court process, deposing that it lacked merit and should be dismissed on the very outset; the Respondent averred that the Appellant was yet to file a Memorandum of Appeal as the annexed Memorandum of Appeal was not officially received by the High Court Registry and had not been allocated case number; the respondent further deposed that the Appellant had not met the threshold and requirements for granting such application and that the Appellant had failed to demonstrate the substantial or irreparable loss it would suffer if the orders sought are not granted. It was deposed that the Appellant is a well-established transport company that will have no difficulty in repaying the decretal sum should the appeal succeed. Urging that the Appellant deposits the entire decretal sum plus costs of the suit or such other security that the court may order for the due performance of the decree.
12.Vide a supplementary affidavit dated 26th November,2020 the Appellant attached the Memorandum of Appeal duly received by the High Court in Machakos and with the case number and deposed that failure to attach the duly stamped copy in the first instance was due to online filing system challenges evidence was shown on how emails was exchanged between the High Court Registry and the Appellant. It was further deponed that they were very apprehensive of the Respondent’s financial muscle to refund the decretal sum should the appeal succeed as the Respondent had not adduced any evidence and that the burden is on the Respondent to provide proof to court that it is capable of refunding the decretal sum should the Appeal be successful. Deposing that the Appellant’s appeal has reasonable chances of succeeding as it raises arguable grounds for consideration and determination by the High Court; lamenting that the Respondent is unlikely to suffer any prejudice this Honorable court grant the orders sought by the Appellant.
13.The application and the opposition to the application was canvassed by way of written submissions.
14.Vide a ruling dated 15th December,2020, entered in favor Appellant in which it was directed that the Appellant deposit half the decretal sum in court within 30 days from the date of the delivery of the ruling.
15.Pursuant to yet another Notice of Motion Dated 11th February, 2021, in which the Appellant sought orders that: the Honorable Court be pleased to enlarge the time within which the Applicant can comply with orders of the court issued on the 15th December,2020 to deposit as security half of the decretal sum as a condition for the grant of stay of execution orders; and on the alternative the decretal amount required to be deposited as security be deposited in a joint interest earning account held in the names of both the advocates on record for the Respondent and for the Appellant. Further that court be pleased to reinstate the orders of stay granted pending appeal. The said application was supported by the supporting affidavit of the Appellant.
16.The Respondent Vide grounds of opposition dated 26th February,2021 opposed the Notice of Motion dated 11/2/2021 and sated that the extension of time is not a right of a party; contending that court’s ruling was clear that the amount was to be deposited within 30 days of 15/12/2020 which lapsed on 15/1/2020 terming the current application an afterthought; it was its opposition that application intends to enlarge time for orders that have already expired therefore non extent and court cannot act in vain and that the Appellant sat in their offices and did not take any initiative to comply with the orders until the Respondent wrote to them on the intention to proceed with the execution that they came to court seeking the orders; urging that the Appellant had approached the court with unclean hands and the current application is meant to defeat finality and justice to move the Respondent away from the seat of justice and enjoying the fruits of the regular judgment entered on 28/9/2020; contending that the Appellant’s application is bad in law, an abuse of the court process and ought to be dismissed with costs to the Respondent.
17.The application and grounds of opposition to the application was canvassed by way of written submissions.
18.Vide a ruling dated 24th May,2021, the Appellants application was granted and directed to deposit half the decretal amount in court within 15 days from the date of the delivery of the ruling and further that the orders of stay pending appeal reinstated.