1. The application before me is dated 23/2/2024 seeking stay of execution of the judgment and decree in Makueni CMCC E117/2022 pending the hearing and determination of the appeal herein.
2. The application is brought under order 42 rule 6 of the Civil Procedure Rule among others.
3. The application is opposed.
4. Parties filed submissions which I have considered together with the rival submissions.
5. I have perused the memorandum of appeal and the judgment of the subordinate court.
6. The respondent would not be averse to a stay of execution if part of the award is released to him, and the rest deposited in a joint interest earning account pending the hearing and determination of the appeal.
7. The respondent is a successful litigant with a lawful judgment, the applicant is entitled to his appeal - and the duty of this court is to balance both their interests.
8. Going by the holding in Samvir Trustee Limited Vs. Guardian Bank Limited Nairobi (Milimani) HCC 796 of 1997 where the court stated;
I agree that every party aggrieved with a decision of this court has a natural and undoubted right to seek the intervention of the Court of appeal. And as far as this matter is concerned, I do not think this court should put unnecessary hindrance to the enjoyment and exercise of that right by the defendant. In my understanding a stay would be granted unless there is overwhelming hindrance to the exercise of the discretionary powers of the court… I appreciate and understand that the court in considering whether to grant or refuse an application for stay is empowered to see whether there exist any special circumstances which can sway the discretion of the court in a particular manner. But the yardstick is for the court to balance or weigh the scales of justice by ensuring that an appeal is not rendered nugatory while at the same time ensuring that a successful party is not impeded from the enjoyment of the fruits of his judgement. It is a fundamental factor to bear in mind that, a successful party is prima facie entitled to the fruits of his judgement, hence the consequence of a judgement is that it has defined the rights of a party with definitive conclusion.
9. I find that guidance in the matter above as it speaks to the circumstances of this case. The applicant has a right to his appeal, the respondent has a right to his judgment. To balance these, I allow the application in the following terms: -
1) An order of Stay of execution of the Judgment of the subordinate court pending the hearing and determination of this appeal do issue on condition that the sum of Kshs. 500,000 is paid to the respondent and the balance of the award is deposited in a joint interest earning account in both names of counsel for the parties within 45 days hereof.
2) The appeal be filed and served upon the respondent within 45 days, hereof.
3) In default, the stay will lapse, the application will stand dismissed with costs to respondent.
4) Otherwise, costs of this application to abide the appeal
Dated signed and delivered virtually on 30th May 2025
MUMBUA T. MATHEKA
JUDG E
2. The application is brought under order 42 rule 6 of the Civil Procedure Rule among others.
3. The application is opposed.
4. Parties filed submissions which I have considered together with the rival submissions.
5. I have perused the memorandum of appeal and the judgment of the subordinate court.
6. The respondent would not be averse to a stay of execution if part of the award is released to him, and the rest deposited in a joint interest earning account pending the hearing and determination of the appeal.
7. The respondent is a successful litigant with a lawful judgment, the applicant is entitled to his appeal - and the duty of this court is to balance both their interests.
8. Going by the holding in Samvir Trustee Limited Vs. Guardian Bank Limited Nairobi (Milimani) HCC 796 of 1997 where the court stated;
I agree that every party aggrieved with a decision of this court has a natural and undoubted right to seek the intervention of the Court of appeal. And as far as this matter is concerned, I do not think this court should put unnecessary hindrance to the enjoyment and exercise of that right by the defendant. In my understanding a stay would be granted unless there is overwhelming hindrance to the exercise of the discretionary powers of the court… I appreciate and understand that the court in considering whether to grant or refuse an application for stay is empowered to see whether there exist any special circumstances which can sway the discretion of the court in a particular manner. But the yardstick is for the court to balance or weigh the scales of justice by ensuring that an appeal is not rendered nugatory while at the same time ensuring that a successful party is not impeded from the enjoyment of the fruits of his judgement. It is a fundamental factor to bear in mind that, a successful party is prima facie entitled to the fruits of his judgement, hence the consequence of a judgement is that it has defined the rights of a party with definitive conclusion.
9. I find that guidance in the matter above as it speaks to the circumstances of this case. The applicant has a right to his appeal, the respondent has a right to his judgment. To balance these, I allow the application in the following terms: -
1) An order of Stay of execution of the Judgment of the subordinate court pending the hearing and determination of this appeal do issue on condition that the sum of Kshs. 500,000 is paid to the respondent and the balance of the award is deposited in a joint interest earning account in both names of counsel for the parties within 45 days hereof.
2) The appeal be filed and served upon the respondent within 45 days, hereof.
3) In default, the stay will lapse, the application will stand dismissed with costs to respondent.
4) Otherwise, costs of this application to abide the appeal
Dated signed and delivered virtually on 30th May 2025
MUMBUA T. MATHEKA
JUDG E