' 1. The application before court is a motion dated 20 September 2024 in which the applicant primarily seeks for the order:
“b) That there be a stay of execution of the decree herein pending the determination of the appeal filed by the Appellant against the judgment delivered by Honourable J B Kalo in Civil Suit No. E1545 of 2022 of the Chief Magistrate''s Court, Mombasa on 15th August 2024 on such terms as appear just and proper.”
2. The application is expressed to be brought under order 42 rule 6 of the Civil Procedure Rules and is supported by the affidavit of Mohamed Ajaz Mirza.
3. Mirza has sworn that he is the Managing Director of the Defendant company and that he was informed by his counsel Mr. Kishore Nanji, which information he verily believed to be true, that on 15 August 2024 the Honourable Mr. J. B. Kalo delivered his judgment in Mombasa Chief Magistrates’ Court Civil Suit No. El545 of 2022 against the Appellant for the sum of Kshs. l,476,992.03 together with interest from the date of filing suit until payment in full. The respondent was also awarded costs of the suit.
4. On 13 September 2024, an appeal was filed in this Honourable Court against the lower court judgment. It has been sworn that unless a stay of execution pending the hearing and determination of the appeal is granted, the Respondent will set in motion execution proceedings against the Appellant''s property for the recovery of the decretal amount and thereby rendering the appeal nugatory.
5. Mirza has also sworn that the appellant is prepared to give appropriate security for the entire amount due under the decree and that the Respondent is not likely to be prejudiced in any way.
6. In response to the application, the respondent filed a replying affidavit in which he has sworn and admitted that indeed judgment has been entered against the appellant. However, it is his position that the applicant’s Application has been brought in bad faith and meant to delay the respondent from enjoying the fruits of its judgment. In particular, it has taken issue with the applicant’s delay in filing the application.
7. The respondent has also contended that it has not been demonstrated that the applicant will suffer irreparable harm if execution is not stayed. In any event, it has been sworn, the applicant has not demonstrated that he is willing to provide security for the performance of the decree. However, without prejudice to the position the respondent has taken, it is contended that if the court is inclined to grant a stay of execution, the applicant should deposit half of the decretal sum in court and the other half with the respondent company.
8. The legal basis upon which stay of execution is pending hearing and determination of appeal is order 42 Rule 6 (1) of the Civil Procedure Rules. This rule reads as follows:
(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.
9. It would appear that both the appellant and the respondent are in agreement that stay can be granted if security for the performance of the decree is deposited. Of course, deposit of security to guarantee performance of the decree is one of the conditions an applicant ought to meet before the court can exercise its discretion in his favour and grant stay of execution.
10. Accordingly, I hereby allow the applicant’s application, to the extent that stay of execution of the decree is granted on condition that the entire decretal sum is deposited in an interest-earning bank account in the joint names of counsel for the appellant and the respondent within thirty days of the date of this order and, in default, execution to issue. The costs of the application to abide the outcome of the appeal. It is so ordered.
'
“b) That there be a stay of execution of the decree herein pending the determination of the appeal filed by the Appellant against the judgment delivered by Honourable J B Kalo in Civil Suit No. E1545 of 2022 of the Chief Magistrate''s Court, Mombasa on 15th August 2024 on such terms as appear just and proper.”
2. The application is expressed to be brought under order 42 rule 6 of the Civil Procedure Rules and is supported by the affidavit of Mohamed Ajaz Mirza.
3. Mirza has sworn that he is the Managing Director of the Defendant company and that he was informed by his counsel Mr. Kishore Nanji, which information he verily believed to be true, that on 15 August 2024 the Honourable Mr. J. B. Kalo delivered his judgment in Mombasa Chief Magistrates’ Court Civil Suit No. El545 of 2022 against the Appellant for the sum of Kshs. l,476,992.03 together with interest from the date of filing suit until payment in full. The respondent was also awarded costs of the suit.
4. On 13 September 2024, an appeal was filed in this Honourable Court against the lower court judgment. It has been sworn that unless a stay of execution pending the hearing and determination of the appeal is granted, the Respondent will set in motion execution proceedings against the Appellant''s property for the recovery of the decretal amount and thereby rendering the appeal nugatory.
5. Mirza has also sworn that the appellant is prepared to give appropriate security for the entire amount due under the decree and that the Respondent is not likely to be prejudiced in any way.
6. In response to the application, the respondent filed a replying affidavit in which he has sworn and admitted that indeed judgment has been entered against the appellant. However, it is his position that the applicant’s Application has been brought in bad faith and meant to delay the respondent from enjoying the fruits of its judgment. In particular, it has taken issue with the applicant’s delay in filing the application.
7. The respondent has also contended that it has not been demonstrated that the applicant will suffer irreparable harm if execution is not stayed. In any event, it has been sworn, the applicant has not demonstrated that he is willing to provide security for the performance of the decree. However, without prejudice to the position the respondent has taken, it is contended that if the court is inclined to grant a stay of execution, the applicant should deposit half of the decretal sum in court and the other half with the respondent company.
8. The legal basis upon which stay of execution is pending hearing and determination of appeal is order 42 Rule 6 (1) of the Civil Procedure Rules. This rule reads as follows:
(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.
9. It would appear that both the appellant and the respondent are in agreement that stay can be granted if security for the performance of the decree is deposited. Of course, deposit of security to guarantee performance of the decree is one of the conditions an applicant ought to meet before the court can exercise its discretion in his favour and grant stay of execution.
10. Accordingly, I hereby allow the applicant’s application, to the extent that stay of execution of the decree is granted on condition that the entire decretal sum is deposited in an interest-earning bank account in the joint names of counsel for the appellant and the respondent within thirty days of the date of this order and, in default, execution to issue. The costs of the application to abide the outcome of the appeal. It is so ordered.
'