Case ID:168750

Ruth Muthoni Murigi v Henry Njuguna Kamau [2021] eKLR

Case Metadata

Case Number:

Civil Appeal E147 of 2020

Parties:

Ruth Muthoni Murigi v Henry Njuguna Kamau

Date Delivered:

08 Jan 2021

Case Class:

Civil

Court:

High Court at Nairobi (Milimani Law Courts)

Case Action:

Ruling

Judge(s):

Joseph Kiplagat Sergon

Citation:

Ruth Muthoni Murigi v Henry Njuguna Kamau [2021] eKLR

Court Division:

Civil

County:

Nairobi

Case Outcome:

Motion dismissed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. E147 OF 2020

RUTH MUTHONI MURIGI.....................................APPELLANT

-VERSUS-

HENRY NJUGUNA KAMAU................................RESPONDENT

RULING

1) Ruth Muthoni Murigi, the appellant herein took out the

Motion dated 15.10.2020 whereof she sought for an order for stay of execution of the decree issued by the trial court pending the hearing and determination of this appeal. She swore the affidavit filed in support of the motion.

2) When served with the aforesaid motion, Henry Njuguna

Kamau, the respondent herein filed the replying affidavit sworn by Roselyne Kihara and grounds of opposition to oppose the motion. When the motion came up for interpartes hearing, this court invited learned counsels appearing in the matter to make oral submissions.

3) Mr. Muriithi, learned counsel for the appellant urged this

court to grant the order sought. He stated that unless the order is granted the appellant will suffer substantial loss in that the respondent will execute the decree thus rendering his appeal nugatory.

4) The learned advocate pointed out that the court found the

parties equally liable for the accident hence it is unfair to let the appellant suffer. The appellant stated that the motion was timeously filed and that the appellant is ready to offer security for the due performance of the decree.

5) On his part, the respondent beseeched this court to dismiss

the appellant’s motion stating that the appellant had failed to demonstrate the substantial loss she would suffer if the order for stay is refused. The respondent however admitted that the application was timeously filed.

6) The background of this motion is straightforward. On

13.11.2011, the respondent was lawfully driving motor vehicle registration no. KBK 620S along Naivasha Road in Nairobi when it collided with the appellant’s motor vehicle registration no. KAP 311P causing damage to the respondent’s motor vehicle.

7) The respondent filed a material damage claim against the

Appellant for ksh.361,248/=. The suit was defended. Hon. Kagoni, learned Principal Magistrate apportioned liability in the ratio of 50%:50%. Judgment was entered in favour of the respondent in the sum of ksh.324,336/= being repair charges plus interest and costs.

8) The appellant being aggrieved preferred this appeal. The

appellant is now before this court seeking for stay of

execution of the decree pending appeal.

9) The principles to be considered in determining an application

for stay of execution pending appeal are set out under Order

42 rule 6 of the Civil Procedure Rules.

First

is that the application must be filed without unreasonable delay. In this case, the respondent concedes that the application was filed without unreasonable delay. The record shows that the motion was filed on 16.11.2020 while judgement was delivered on 21

st

September 2020. I am satisfied that the delay in filing the motion is reasonable.

10) The

second

principle is that the applicant must show that

she would suffer substantial loss if the order for stay of execution of the decree is denied. In this case, the main ground advanced in support of the appellant’s assertion is that if the order for stay of execution is declined the respondent would proceed to execute to recover the decretal sum to utter detriment of the appellant.

11) It is clear in my mind that execution is a lawful process

underpinned by statute and cannot therefore be regarded as a substantial loss. I find that the appellant has failed to establish the substantial loss she would suffer if the order for stay is denied.

12) I have previously stated that where an applicant fails to

establish the substantial loss then the order for stay would be denied. In the circumstances the third principle for the provision of the decree for the due performance of the decree should not be considered since the same is dependent on the second principle.

13) In the end, I find no merit in the motion dated 15.10.2020.

The same is dismissed with costs abiding the outcome of the

appeal.

Dated, Signed and Delivered online via Microsoft Teams at Nairobi this 8

th

day of January, 2021.

............................

J. K. SERGON

JUDGE

In the presence of:

…………………………….…. for the Appellant

……………………………….. for the Respondent