Bornface Mungai Ngure v Rose Wangari Wangui (suing as the legal representative of the estate of Anthony Gachamiu Muthiga)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KIAMBU CIVIL APPEAL NO. 118 OF 2019 BORNFACE MUNGAI NGURE................................................APPELLANT VS. ROSE WANGARI WANGUI (suing as the legal representative of the estate of ANTHONY GACHAMIU MUTHIGA)......................................................... RESPONDENT (Being an appeal from the judgment of the Senior Resident Magistrate’ Court at Kiambu, W.O. Rading delivered on 11 th July, 2019, Civil Case No. 466 of 2018) RULING 1. In Civil Case No. 466 of 2018 Kiambu Chief Magistrate’s court (the trial court) delivered judgment in favour of the respondent in this appeal for Kshs.4,164,000/=. The appellant being aggrieved by that award, has filed the present appeal. The appellant has filed several applications dated 14th November, 2019, 20th November, 2019 and 26 th November, 2019. By those applications the appellant seeks to stay the judgment of the trial court. ANALYSIS 2. I have considered the parties’ affidavit, evidence and submissions. 3. It is important to start by considering the preliminary objection raised by the respondent to the effect that the appellant, having made a similar application before the trial court was barred from seeking similar orders before this Court for stay of execution pending appeal. 4. My simple response to that objection is that the appellant is permitted to make a similar application before this Court by Order 42 Rule 6(1) of the Civil Procedure Rules. That Rule provides:- “No Appeal or second Appeal shall operate as a stay of execution or proceedings under a decree or order Appealed from except in so far as the Court Appealed from may order but, the Court Appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the Court Appealed from, the Court to which such Appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the Court from whose decision the Appeal is preferred may apply to the appellate Court to have such order set aside.” (underlining mine) 5. A case in point on that Rule is PATRICK KALAVA KULAMBA & ANOTHER VS. PHILIP KAMOSU AND RODA NDANU PHILP (Suing as the Legal Representative of the Estate of Jackline Ndinda Philip (deceased) (2016) eKLR, where it was held:- “12. For the purposes of this case, the operational words are as underlined above. Thus, whether an application for stay pending appeal has been allowed or rejected in the lower court, the High Court “shall be at liberty…to consider” an application for stay made to it and to make any order it deems fit. The High Court in that capacity exercises what can be termed “original jurisdiction”. And from my reading of the rule, the jurisdiction is not dependent on whether or not a similar application had been made in the lower court, or the fate thereof…” 6. It is conceded by the respondent that the appellant has paid to the respondent Kshs.2,211,718, being part of the trial court’s judgment

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