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Mutua v Wambua (Civil Appeal E022 of 2023) [2023] KEHC 22592 (KLR) (25 September 2023) (Ruling)
Neutral citation:
[2023] KEHC 22592 (KLR)
Republic of Kenya
Civil Appeal E022 of 2023
TM Matheka, J
September 25, 2023
Between
Nicholas Kyalo Mutua
Appellant
and
Julius Masaku Wambua
Respondent
Ruling
1.What is before me is the Notice of Motion dated 17/3/2023 brought substantively under 0rder 42 rule 4, 6, 7 of the Civil Procedure Rule - seeking orders inter alia - that there be stay of execution of the judgment of Hon JA Otieno RM in Makueni CMCC E064 of 2023.
2.The brief facts behind the application are that on 6/11/2021 there was a road traffic accident involving the respondent and the appellant’s motor vehicle. Vide its Judgment dated February 20, 2023 the learned trail magistrate found in favour of the respondent against the appellant found the appellant 100% liable, awarded General Damage + Special Damage of Kshs 1,581,030 plus costs and interest.
3.The appellant aggrieved lodged this appeal against both liability and quantum and through this motion is seeking stay of execution of the said judgment pending the hearing and determination of the appeal.
4.The application is opposed through the replying affidavit of David Mirara advocate on record for the respondent on grounds mainly that the application is premature as there is no decree extracted and that the appeal is not merited as the trial court properly directed itself as to the merits of the case.
5.Parties chose to proceed by way of written submissions which were filed through their respective counsel.
6.I have carefully considered the application., rival submissions and the only issue is whether the order of stay of execution is warranted.
7.Order 42 rule 6(1) & (2) of the Civil Procedure Rule gives the parameters for the issuance of such an order. It provides
Analysis
8.On timeliness the application was filed in good time and there was no delay.
9.On security the appellant’s counsel has filed a copy of a bank guarantee which he submits provides sufficient security as for the performance of the decree should stay of execution be granted. However this is not specific to this case - and in any event that the document incomplete is itself incomplete. Going by Michael Ntouthi Mitheu V Abraham Kivondo Musau (2021) eKLR I am persuaded that the bank guarantee is not sufficient security
10.However from the submissions it is evident that the respondent is not averse to the order of stay of execution being granted for as long as the court balances the appellants right of appeal with the respondent’s right to enjoy the fruits of his judgment. He has cited Samvir Trustee Limited v Guardian Bank Ltd Nrb Milimani HCCC 795/1997; Kenya Shell Ltd v Kibiru [1986] KLR 410.
11.The appellant is ready to give security of the bank guarantee but the same as I have said - is insufficient - and this court is not bound by their offer.
12.In the circumstances, balancing the interests of the appellant to his right of appeal, and the respondent to the right to enjoy the fruits of his judgment, I allow the application for stay of execution of the judgment pending the hearing and determination of the appeal on the following conditions;a.That the appellant/applicant will pay ½ the decretal sum to the respondent within 45 days hereof.b.That the other ½ together with costs and accruing interest shall be deposited in a joint interest earning account in the names of the counsel for both parties.c.The appellant will file the appeal within 45 days hereofd.In default of either a or b or both the application shall be deemed to have been dismissed with costs and the respondent shall be at liberty to execute.
DATED SIGNED AND DELIVERED VIRTUALLY THIS 25TH SEPTEMBER 2023.................MUMBUA T. MATHEKAJUDGECA NelimaMacharia for respondentN/A for ApplicantKimondo Gachoka & Company AdvocatesRespondent’s CounselMirara and Associate Advocates LLP
