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Mwaniki & another v Jonathan (Civil Appeal 34 of 2023) [2023] KEHC 22697 (KLR) (25 September 2023) (Ruling)
Neutral citation:
[2023] KEHC 22697 (KLR)
Republic of Kenya
Civil Appeal 34 of 2023
TM Matheka, J
September 25, 2023
Between
M Mwaniki
1st Appellant
John Maina Kimani
2nd Appellant
and
Musenya Jonathan
Respondent
Ruling
1.Before me is the Notice of Motion dated 18/4/2023 brought under, inter alia order 42 rule 6 of the Civil Procedure Rules. It essentially seeks stay of execution of the judgment of Hon. J.D Karani in Makindu SPM CC 371 /2019 - in which the learned trial magistrate awarded judgment against the appellant at 100% liability , General Damage of Kshs. 300,000 and Special Damages of 12,500 on 29/3/2023.
2.The appellants were aggrieved and lodged an appeal against the award of liability and general damages.
3.The only issue is whether the applicant has complied with the conditions of order 42 rule 6 of the Civil Procedure Rules.
4.It is argued for the respondent that the applicant does not even had an arguable appeal in that the respondent was a fare paying passenger in the accident m/v so liability is not in issue - that quantum of damages awarded was reasonable - and the appellant did not present any evidence to controvert that of the respondent.
5.In the circumstances it is argued that they do not deserve the prayer for stay of execution of judgment - and if granted they should pay ¾of decretal sum to the respondent and deposit the balance in an interest earning account.
6.That the applicant has not provided there is no adequate security for the performance of the decree - yet the respondent is entitled to the fruits of her judgment. See Ms Shariff and Co Advocate v Omari Mbwana Zonga (2021) eKLR.
7.That the bank guarantee is not sufficient - see Lucy Nyanchoka Nyarieko v Nancy Corris [2022] eKLR as there is the possibility of the bank not honouring the bank guarantee. That the applicant is not a party to the guarantee which is not specifically for this appeal see Nobel Trading Co Ltd & 2 others V Peter Odhiambo Maraga [2022] eKLR ; Amoke Otieno Pascal V Melvin Anyango Owuor [2022] eKLR
8.Finally, that there is no risk of substantial loss.
9.The respondent urges that the application be dismissed with costs.
10.However on the basis that the applicant does have the right of appeal - and the appeal is not being argued now, it is in order that the application be allowed . See Nancy Nduta Korie & Another v Rosline Kimunzoi[2019]eKLR.
11.In the circumstances I allow the application for stay of execution of the judgment on condition that part of the decretal sum in the sum of Ksh 200,000 be paid to the appellant within 30 days hereof.a.Kshs. 200,000 be paid to the respondent and the balance be deposited in an interest earning account in the joint names of the advocates of the parties within 30 days hereofb.In default of (a) above the application will stand dismissed and the respondent will be at liberty to execute.c.The Appeal be filed and served within 30 days hereof.d.The respondent will have costs of this application.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 25TH SEPTEMBER 2023………………………………………………………..MUMBUA T MATHEKAJUDGEMs Owino for respondentKimondo for appellant no appearanceMutuku Wambua & Associates AdvocateRespondent’s CounselKimondo Gachoka Advocate
