Case ID:179792

Kensilver Express Limited & another v Judy Njoki Gatumo [2021] eKLR

Case Metadata

Case Number:

Civil Miscellaneous Case EO28 of 2021

Parties:

Kensilver Express Limited & Douglas Ntambura v Judy Njoki Gatumo

Date Delivered:

29 Jul 2021

Case Class:

Civil

Court:

High Court at Meru

Case Action:

Ruling

Judge(s):

Thripsisa Wanjiku Cherere

Citation:

Kensilver Express Limited & another v Judy Njoki Gatumo [2021] eKLR

Advocates:

For Applicants Vivian Loice Aketch & Co. Advocates

For Respondent - N/A for Michael Ngunjiri & Co. Advocates

Court Division:

Civil

County:

Meru

Advocates:

For Applicants Vivian Loice Aketch & Co. Advocates

For Respondent - N/A for Michael Ngunjiri & Co. Advocates

History Advocates:

Both Parties Represented

Case Outcome:

Notice of motion allowed

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 MERU

(CORAM: CHERERE-J)

CIVIL MISC. CASE NO. EO28 OF 2021

BETWEEN

KENSILVER EXPRESS LIMITED..................................1

ST

APPELLANT/APPLICANT

DOUGLAS NTAMBURA..............................................2

ND

APPELLANT/APPLICANT

AND

JUDY NJOKI GATUMO........................................................................RESPONDENT

RULING

Background

1) This appeal arises from a judgment in respect of an accident involving the 1

st

Appellant’s motor vehicle KAW 097K that was involved in an accident on 06

th

November, 2010.

2) On the 08

th

February, 2021, the court in

MAUA CMCC NO.189 OF 2013

entered judgment in favour of the Respondent as against the Appellants/ Applicants jointly and severally for Kshs. 5,500,000/-.

3) By a notice of motion dated 22

nd

February, 2021 and filed on 24

th

February, 2021, Applicant seeks orders for:

1) This Honourable Court Stay of execution of judgment in

MAUA CMCCNO.189 OF 2013

pending the hearing and determination of the appeal

2) Costs be provided for

4) The notice of motion is premised on grounds among others that the Applicant is aggrieved by the judgment of the trial court and has filed an appeal which has overwhelming chances of success.

5) The application is also supported by an undated affidavit sworn by David Lucas Onyengo, the Applicant’s Supervisor who reiterates the grounds on the face of the application.

6) The application is opposed on the basis of a replying affidavit sworn by the Respondent on 06

th

May, 2021. She contends that the Applicants have not demonstrated substantial loss in the event that the stay orders are not granted.

Analysis and Determination

7) I have considered the application in light of affidavits on record and annexures thereto. It is apparent that this appeal and

Civil Appeal 20, 19 & 18 of 2021 (Consolidated)

arise from judgments for damages arising out of the same accident.

8) The court has already made a decision on applications for stay of execution in

Civil Appeal 20, 19 & 18 of 2021 (Consolidated

). To avoid the risk of coordinate courts granting conflicting orders, this court finds that it would be in the interest of justice that similar orders as made in

Civil Appeal 20, 19 & 18 of 2021 (Consolidated

) do apply to this application.

9) Consequently, the notice of motion dated 22

nd

February, 2021 and filed on 24

th

February, 2021 is allowed in the following terms:

i) An order for stay of execution of the Judgment and Decree in

MAUA CMCC NO.189 OF 2013

pending the filing, hearing and determination of the intended Appeal is hereby issued.

ii

The Applicants shall with fourteen (14) days from the date of this order pay the Plaintiff/Respondent a total of Ksh. 500,000/- (Kenya Shillings Five hundred thousand).

iii)

Within 60 days from the date hereof, the Applicants shall deposit the balance of the decretal sum being Ksh. 5,000,000/=, in a joint interest earning account in names of the respective Advocates for the parties.

iv)

In default of compliance with orders ii) and iii) above, the orders for stay shall lapse.

v) The costs of the applications shall abide the outcome of the Appeal.

DATED IN MERU THIS

29

th

DAY OF

July

2021

T.W. CHERERE

JUDGE

Court Assistant -

Morris Kinoti

For Applicants - Ms. Aketch instructed by Vivian Loice Aketch & Co. Advocates

For Respondent - N/A for Michael Ngunjiri & Co. Advocates