Application dated 14th March 2025 is brought pursuant to Section 1A, 1B and 3A of the Civil Procedure Act, Chapter 21 of the Laws of Kenya; Order 22 Rule 22, Order 42 Rule 6 (1), (2) & (6)and Order 51 Rule 1 of the Civil Procedure Rules, 2010 and all other enabling provisions of the law seeks order of stay pending hearing of the application and appeal. The Application is supported by the following grounds on its face and Affidavit sworn dated 14.3.25 on the ground that: -
i. That this Application be certified as urgent service of the same be dispensed with and heard ex-parte in the first instance.
ii. That this Honourable Court be pleased to order stay of execution of the Judgment and Decree resulting from the Judgment delivered on 18th February 2025 in Migori CMCC No. E081 OF 2022 pending the hearing and determination of this application.
iii. That this Honourable Court be pleased to order stay of execution of the Judgment and Decree resulting from the Judgment delivered on 18th February 2025 in Migori CMCC No. E081 of 2022 pending the hearing and determination of the Appeal.
iv. That the cost of this application abide the outcome of the Appeal.
The Respondent opposed the application and raised a preliminary objection dated 22.4.2025 on the grounds that since the same application was made in the trial court the instant one is res judicata.
This court has considered the preliminary objection concurrently with the application for stay of execution of orders in the Migori CMC E081 of 2022 and find that the preliminary objection cannot be upheld for reasons the application alluded to was made in the subordinate curt and not herein and cannot be termed Res Judicata.. The Applicant has the right to approach this court to preserve the substratum of the appeal pending hearing and determination of the appeal so that it is not rendered nugatory.
The Applicant offered to deposit security and as such the Application for stay is allowed on condition that decretal sums are deposited in an interest earning account in the joint names of the Advocates for parties herein within 30 days.
Costs of the application to be in the cause.
Mention on 6.10.2025 to confirm Record of Appeal filed and served and trial court file availed.
DELIVERED, DATED and SIGNED at MIGORI this 8th day of May, 2025.