- By notice of Motion Application dated 20.8.24 and filed through the firm of Cootow & Associates Advocates.
- The Appellant/Applicant herein seeks the following orders: - THAT the Honourable Court be pleased to grant stay of execution of Kisii CMCC no. E836 of 2023 pending hearing and determination of the appeal herein.
3. The application is based on the ground on the face of it and the supporting affidavit and supplementary affidavit of Kevin Ngure the Deputy Claims Manager of the appellant/applicant. The applicant says it has appealed against the decision of the lower court in Kisii CMCC NO. 836 of 2023 and that the appeal will be rendered nugatory. The appellant offered a bank guarantee as a security.
4 The respondent filed a replying affidavit dated and terms the application incompetent and abuse of the process of the court and meant to deny him the fruits of his judgment.He told this court that a money decree cannot be rendered nugatory.The Respondent opposed deposit of a bank guarantee saying there is no evidence that there is money to support it and suggested that the applicant releases half of the decretal sum to him or his counsel and the other half be deposited in court as security. It was directed that the Application be disposed of by way of written submissions.
5. On the issue of the threshold for stay pending appeal, Order 42 Rule 6 of the Civil Procedure Rules, 2010 provides as follows: -
Stay in case of appeal
[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 to have such order set aside.
[2] No order for stay of execution shall be made under sub rule [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.
[3] Notwithstanding anything contained in sub rule [2], the court shall have power without formal application made, to order upon such terms as it may deem fit a stay of execution pending the hearing of a formal application.
[4] For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given.
[5] An application for stay of execution may be made informally immediately following the delivery of judgment or ruling.
[6] Notwithstanding anything contained in sub rule [1] of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.
6. In the case of RWW v EKW [2019] eKLR, considered the purpose of a stay of execution order pending appeal, in the following words:
“The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.
9. Indeed to grant or refuse an application for stay of execution pending appeal is discretionary. The Court when granting the stay however, must balance the interests of the Appellant with those of the Respondent.”
7. I have weighed the rights of the applicant and those of respondent on this issue and I find that the applicant will suffer substantial loss unless the stay orders are granted.
8. On the issue of security, the applicant has offered a bank guarantee as security in the application but no bank guarantee has been exhibited herein for scrutiny by the court. The respondent has suggested that ½ of the decretal sum be deposited with him or his advocate and the other half be deposited in court.
9. . Order 42 Rule 6 is clear on the conditions for granting stay of execution pending appeal.
10 . In the upshot I allow the application on condition that ½ of the decretal sum be deposited in court within 30 days from the date of this ruling.
11. Record of appeal be filed and served within 60 days from the date of this ruling. Mention on 25.2.25 before the DR for compliance.
Delivered Virtually via teams platform in the presence of:
Miss Kahiti holding brief for Miss Omollo for the appellant.
N/A for Respondent
Court Assistant - Oigo