INTRODUCTION
1. The Applicant filed application dated 5.2.25 seeking stay of judgment dated 6,11,24 by Hon Nyariki (SRM ) in MCCC/E230/2021 pending hearing and determination of the appeal herein.
2. The application proceeded ex parte as the respondent did not appear despite service
ISSUE FOR DETERMINATION:
3. I have carefully considered the application and the law . The following issue arises for determination:
a) Whether the Applicants have satisfied the conditions for grant of stay of execution under Order 42 Rule 6 of the Civil Procedure Rules.
DISPOSITION OF THE ISSUE
4. Order 42 of the civil procedure rules provides that ‘’ 1. 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.(2)No order for stay of execution shall be made under subrule (1) unless—(a)the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and(b)such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant
5. It is thus clear that the conditions to be satisfied by parties seeking stay pending appeal to wit ;
a. Substantial loss may result to the applicant unless the order is made
b. The application has been made without undue delay .
c. Such Security for due performance of the decree as the court may deem fit to order .
6. On substantial loss the applicant said that the decree was for Kshs 531,712 /= and that execution is imminent and thus it is important to grant stay pending appeal so that the appeal which is on both quantum and lialibity is not rendered nugatory. Machira t/a Machira & Co. Advocates vs. East African Standard (No 2) (2002) KLR 63, it was held as follows;
“In this kind of applications for stay, it is not enough for the applicant to merely state that substantial loss will result. He must prove specific details and particulars… where no pecuniary or tangible loss is shown to the satisfaction of the court, the court will not grant a stay...”
This has not been challenged and I find that substantial loss will be occasioned to the applicant if the execution is let to proceed before the appeal is heard and determined as decretal sum will have been paid out and thus the appeal will be rendered nugatory .
7. On whether the applicant has been made without undue delay. The judgment was delivered on 6.11.24 and the application was filed on 6.2.25 which is a difference of about 60 days . I find that the application was filed within a reasonable time .
8. On security , the applicant offered to deposit ½ of the decretal sum in court as security. This is not opposed . I find that the security offered by the applicant is fair in the circumstances .
9. in the upshot I find that the applicant has satisfied the conditions for grant of stay pending appeal and I proceed to stay the execution of the judgment of the lower court pending hearing and determination of the appeal herein on condition that the applicant deposits ½ of the decretal sum in court within 30 days from today.
Delivered Virtually via teams Platform in the presence of Odero for applicant/appellant. No appearance for respondent .
ORDER
Record of appeal be filed and served within 30 days from today. Mention on 28.4.25 before the deputy registrar for compliance .
1. The Applicant filed application dated 5.2.25 seeking stay of judgment dated 6,11,24 by Hon Nyariki (SRM ) in MCCC/E230/2021 pending hearing and determination of the appeal herein.
2. The application proceeded ex parte as the respondent did not appear despite service
ISSUE FOR DETERMINATION:
3. I have carefully considered the application and the law . The following issue arises for determination:
a) Whether the Applicants have satisfied the conditions for grant of stay of execution under Order 42 Rule 6 of the Civil Procedure Rules.
DISPOSITION OF THE ISSUE
4. Order 42 of the civil procedure rules provides that ‘’ 1. 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.(2)No order for stay of execution shall be made under subrule (1) unless—(a)the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and(b)such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant
5. It is thus clear that the conditions to be satisfied by parties seeking stay pending appeal to wit ;
a. Substantial loss may result to the applicant unless the order is made
b. The application has been made without undue delay .
c. Such Security for due performance of the decree as the court may deem fit to order .
6. On substantial loss the applicant said that the decree was for Kshs 531,712 /= and that execution is imminent and thus it is important to grant stay pending appeal so that the appeal which is on both quantum and lialibity is not rendered nugatory. Machira t/a Machira & Co. Advocates vs. East African Standard (No 2) (2002) KLR 63, it was held as follows;
“In this kind of applications for stay, it is not enough for the applicant to merely state that substantial loss will result. He must prove specific details and particulars… where no pecuniary or tangible loss is shown to the satisfaction of the court, the court will not grant a stay...”
This has not been challenged and I find that substantial loss will be occasioned to the applicant if the execution is let to proceed before the appeal is heard and determined as decretal sum will have been paid out and thus the appeal will be rendered nugatory .
7. On whether the applicant has been made without undue delay. The judgment was delivered on 6.11.24 and the application was filed on 6.2.25 which is a difference of about 60 days . I find that the application was filed within a reasonable time .
8. On security , the applicant offered to deposit ½ of the decretal sum in court as security. This is not opposed . I find that the security offered by the applicant is fair in the circumstances .
9. in the upshot I find that the applicant has satisfied the conditions for grant of stay pending appeal and I proceed to stay the execution of the judgment of the lower court pending hearing and determination of the appeal herein on condition that the applicant deposits ½ of the decretal sum in court within 30 days from today.
Delivered Virtually via teams Platform in the presence of Odero for applicant/appellant. No appearance for respondent .
ORDER
Record of appeal be filed and served within 30 days from today. Mention on 28.4.25 before the deputy registrar for compliance .