Gikonyo & another v Wambui

4. Regarding quantum, the court noted that the appellants appeared to challenge the award on general damages; that the injuries suered by the respondent were serious and were fully conrmed by the medical evidence adduced. The court noted that, in their written submissions, the appellants had not demonstrated what error the trial court had committed in assessing general damages. The court did not nd on the record any error. The court opined that, in fact, the general damages awarded appeared a bit on the lower side, considering the injuries suered by the respondent. Ultimately, the High Court did not nd any merit in the appeal and dismissed it in its entirety. 5. Being aggrieved, the applicants led the appeal before this Court and contemporaneously led the instant application under Rule 5(2) (b) of the Court of Appeal Rules seeking an order of stay of execution of the decision of the High Court in Civil Case No. 3 of 2020 pending the hearing and determination of the substantive appeal. 6. It is the applicants’ position that the respondent has been issued with the decree in the subordinate court and is capable of execution; that unless a stay order is issued the intended appeal may be rendered nugatory if successful; that the respondent will not be prejudiced in any way if the order sought is granted, and that the respondent may not be in a position to refund the amount decreed if execution takes place and the intended appeal succeeds. 7. The respondent has led a replying adavit in which he depones that the application is frivolous and fatally defective; that the applicant's appeal on the issue of liability does not raise any serious issue for consideration by the court since the decision of the trial court, which was upheld by the High Court, was well reasoned as the driver of the subject accident failed to testify at the trial court, and that the decision of the award of the trial court which was upheld by the High Court was within the range applied by most courts, and hence the appeal is a waste of time; that execution has not yet commenced hence the orders sought herein are unwarranted. 8. He deposes further that the decree is a money decree and therefore the question of the appeal being rendered nugatory if successful does not arise as the applicants have not shown that the Respondent is impecunious such that he cannot refund the decretal sum awarded if the same is paid. 9. Both parties led written submissions in support of their rival positions. There was no appearance by either party at the virtual hearing of the application, and so the Court directed that the application will be determined on the basis of the adavits and submissions as led and the law. In our view, this is a very straight forward matter, and the applicants have run into headwinds for two reasons. 10. First, the decision appealed against is a dismissal. It is therefore a negative order. This Court has innumerable times pronounced itself on stay of negative orders. In Western College of Arts and Applied Sciences v EP Oranga & 3 Others [1976] eKLR, the learned Judges stated thus:“ What is there to be executed under the judgment, the subject of the intended appeal" The High Court has merely dismissed the suit, with costs. Any execution can only be in respect of costs. In Wilson v Church the High Court had ordered the trustees of a fund to make a payment out of that fund. In the instant case, the High Court has not ordered any of the parties to do anything, or to refrain from doing anything, or to pay any sum. There is nothing arising out of the High Court judgment for this Court, in an application for a stay, it is so ordered.” https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1033/eng@2022-09-23 2

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Similarly, in Raymond M. Omboga v. Austine Pyan Maranga, Kisii HCCA No 15 of 2010, Makhandia, J (as he then was) stated thus:“ The order dismissing the application is in the nature of a negative order and is incapable of execution save, perhaps, for costs and such order is incapable of stay. Where there is no positive order made in favour of the respondent which is capable of execution, there can be no stay of execution of such an order...The applicant seeks to appeal against the order dismissing his application. This is not an order capable of being stayed because there is nothing that the applicant has lost. The refusal simply means that the applicant stays in the situation he was in before coming to court and, therefore, the issues of substantial loss that he is likely to suer and or the appeal being rendered nugatory do not arise...” 11. Second, we note that the appellants’ appeal basically raises matters of fact and, this being a second appeal whose jurisdiction is conned to points of law only, we harbor some doubt as to whether the appeal is arguable or not. The rst hurdle on the requirement that the applicant must demonstrate that they have an arguable appeal has not been surmounted. Having so found, we need not get into the second aspect on the nugatory aspect. 12. For the foregoing reasons, we nd the application devoid of merit and dismiss it with costs to the respondent. DATED AND DELIVERED AT NAIROBI THIS 23RD DAY OF SEPTEMBER, 2022. W. KARANJA .................................... JUDGE OF APPEAL F. SICHALE .................................... JUDGE OF APPEAL DR. K. I. LAIBUTA ................................... JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1033/eng@2022-09-23 3

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