Samuel Githua Gitonga & 1 other v Abdi Yahya Alabdi & 4 others

2. The Application is supported by the grounds on its face and the Affidavit of the 1st Applicant sworn on the same day. He deponed that the trial court found the Applicants 100% liable and awarded general damages of kshs 200,000/= plus costs and interest. A copy of the judgment and a letter requesting for certified copies of the judgment, proceedings and decree are exhibited as SGG 1 & 2 respectively. 3. He deponed that the information from his advocate which he verily believes to be true is that the award is excessive hence the appeal herein to challenge the same. A copy of the Memorandum of Appeal is exhibited as SGG3. 4. He deponed that the Appeal has very high chances of success for grounds inter alia that; ‘the learned trial magistrate erred in law and fact by failing to analyze and take into consideration the Appellant’s material evidence and particulars of negligence attributed to the Respondent.’ That, the Appeal will be rendered nugatory if the orders sought are not granted. That, the motor vehicle subject to the case was insured by APA Insurance Ltd, which has filed Nairobi CMCC No. E4473 of 2023 seeking orders to be exempted from satisfying the decree herein and the suit is still pending hearing and determination. A copy of the pleadings is exhibited as SGG4. 5. He deponed that he has no knowledge of the Respondent’s ability to refund any monies paid if the Appeal succeeds. That, the Applicants are ready, willing and able to furnish reasonable security and the Application has been filed without unreasonable delay. That, the Appeal has high chances of success and it is crucial for this court to order a stay of proceedings to prevent the intended appeal being rendered futile. 6. The Application is opposed through the Replying Affidavit sworn on 19/09/2024 by Patrick Waiganjo Wachira. He deponed that he is an Advocate of the High Court of Kenya on record for the Respondent hence well versed with the facts giving rise to the Application. 7. He deponed that the Application is frivolous, vexatious, an abuse of the court process and should be dismissed with costs to the Respondent. That, the Applicants have not complied with the mandatory conditions to warrant grant of the orders. That, they have not offered any security, which is a precondition for grant of the orders and have not adduced evidence to show that they will suffer substantial loss if the orders sought are declined. 8. He deponed that the ongoing disclaimer proceedings cannot hinder execution since no orders were sought to stay hearing of the matter at the trial court. 9. He deponed that if this court is inclined to grant the orders sought, the Applicants should be ordered to pay the uncontested amount as submitted in the trial court and the balances be deposited in court. 10. Directions were given that the application be canvassed through written submissions but none of the parties has filed submissions in any of the matters forming this series. 11. I have considered the application , the Supporting and Replying Affidavits, the only issue for determination is whether the application is merited; Whether stay of execution should be granted 12. According to Order 42 Rule 6 of the Civil Procedure Rules, the conditions which should guide the Court in determining whether to grant stay pending appeal are; whether substantial loss will occur if stay is not granted, whether the Application has been filed without unreasonable delay and furnishing security for the due performance of the decree. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4348/eng@2026-02-06 2

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13. The Judgments by the trial court in all the files in this series were delivered on 02/07/2024. The respective Application in each files was filed on 25/07/2024. Evidently, there was no delay in filing the Applications. 14. As for substantial loss, the Appellants are apprehensive that if the decretal amounts are released to the Respondents, they might not recover the same if the appeal succeeds. They contend that they are not aware of the Respondent’s financial ability. 15. The trial Magistrate awarded each of the Respondents general damages in the sums of kshs 200,000/ = in HCCA E082/2024,, 600,000/= in E083/2024, 2,000,000/=in E085/2024, 600,000/= in E086/2024 and 700,000/= , , in E087/2024 respectively as well as special damages, costs and interest. None of the Respondents made any deposition regarding their financial position and no affidavit of means was filed either. It has been held that this is information within the exclusive knowledge of the Respondent and hence without disclosure, this Court is also in the dark as to whether they have capacity to refund the decretal sums if paid. 16. As for security, the Applicants have deponed that they are able, willing and ready to furnish reasonable security. This in my is sufficient to satisfy the requirement of furnishing security under Order 42 as it is within the discretion of the court to set the terms same. 17. The Respondents through their counsel urge this court to order the Applicants to pay what they term to be the uncontested amounts submitted in the trial court and the balances be deposited in court. However, it is evident that the insurer’s liability and obligation to pay the decretal sums arising from the judgments entered against the insured (Applicants) is in dispute. This is evidenced by Civil Suit No. E4473 of 2023 filed at the Commercial Division of Milimani High Court. If judgment is entered in favor of the Insurance company, the effect will be that the Insurance company will not be liable to pay decretal sums arising from the judgments entered by the trial court and as such, the Applicants will be personally liable to settle the decretal awards. 18. Consequently, the ongoing disclaimer proceedings do not affect the Respondents’ right to enjoy the fruits of their judgment. In the event that the Milimani suit favors the Applicants herein, they can always pursue their insurer for reimbursement of any amounts paid to the Respondents. On the other hand, the Applicants have a right to pursue an Appeal and this court has a duty to balance the competing interests. 19. It is evident from the Memorandums of Appeal that the Appellants are contesting both liability and quantum. I suppose by uncontested sums the counsel for the respondents means the sums suggested in the submissions by the applicants before the trial court. The submissions of the parties before the trial court were not exhibited so as to guide this court on the said ‘uncontested’ amounts and as such. 20. In the circumstances I find that it would be fair for the a stay of execution order to issue on condition that the applicants to pay to the respondents a quarter (1/4) of general damages awarded in each case to the respective Respondents. For avoidance of doubt, the Applicants should release kshs 50,000/=, 150,000/=, 500,000/=, 150,000/= and 175,000/= Another quarter(same amounts) be deposited in a joint interest earning account in the joint names of advocates. 21. The payment and deposit order be complied with within 45 days hereof. In default, the stay of execution will lapse automatically. 22. The costs of each application to abide the outcome of the appeal. DATED SIGNED AND DELIVERED THIS 6TH FEBRUARY 2026 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4348/eng@2026-02-06 3

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MUMBUA T MATHEKA JUDGE CA Mwiwa/Daniel Ms Kibii for applicants Mr Kiptanui for Respondents LADY JUSTICE MATHEKA, TERESIA MUMBUA THE JUDICIARY OF KENYA. MAKUENI HIGH COURT HIGH COURT DIV DATE: 2026-02-06 17:42:01 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4348/eng@2026-02-06 4

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