1. The motion before court is dated 2 October 2024 and is expressed to be brought under Section 1A, 1B and 3A of the Civil Procedure Act cap. 21; order 40 Rule 1, 4 & 10 and, order 51 Rule 1 of the Civil Procedure Rules. It seeks orders:
“1. That this matter be certified urgent and service be dispensed with and the same be heard ex-parte.
2. That pending the hearing of this application inter parties, the Honourable Court be pleased to issue an interim order of stay of execution of the Ruling dated 19th September, 2024 pending the hearing and determination of this application.
3. That the Honourable Court be pleased to issue an interim order of stay of execution of the ruling dated 19th September, 2024 and any decree arising therefrom pending the hearing and determination of the appeal.
4. That the costs of this application be in the cause.”
2. The application is supported by the affidavit of Peter Umara, sworn on his own behalf, as the 1st applicant, and on behalf of the 2nd respondent.
3. According to Umara, the magistrates court delivered a ruling on 19 September, 2024, apparently on an application for stay pending appeal, according to which he was directed to pay a decretal sum of Kshs. 4,485,526.90 within 30 days from the date of the ruling. In default of payment, execution of the decree would proceed.
4. The appellants appealed because the 1st appellant could not afford to deposit the entire decretal sum as directed by the court and, in any event, they filed an appeal against the decree entered in the register as Honourable Court civil appeal no. E006 of 2023. The appellants are apprehensive that, their appeal notwithstanding, the respondent will proceed with execution and thereby render the appeal nugatory hence the instant application.
5. The application is opposed and a replying affidavit to this end has been sworn by Stephen Ngaruiya Mburu. Mburu has sworn that he is the chief executive officer of the respondent and also admits that the appellants were ordered to deposit the entire decretal amount in court apparently as security for the performance of the decree pending the hearing and determination of their appeal.
6. Rather than comply with the ruling, the appellants appealed against it and also filed a separate appeal against the judgment of the court. It is the respondent’s case that the judgment appealed against is as a result of what the respondent has described as a “long arduous process” for recovery of payment for goods supplied to the applicants way back in 2011.
7. The applicants, it is sworn, have failed to supply the company's bank accounts in support of their claim for impecunity and that their present application is an attempt to delay the respondent in enjoying the fruits of its judgment.
8. Provision of security for the performance of a decree is, of course, one of the conditions the court will consider, in exercising its discretion to stay execution of the decree or order pending appeal. Nonetheless, as the Court of Appeal held in Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR), the ultimate goal is to ensure that if the appeal is not frivolous, it is not rendered nugatory. A passage from the leading judgment of Madan, J.A. is instructive in this regard. The learned judge held as follows:
“If there is no other overwhelming hindrance, a stay ought to be granted so that an appeal, if successful, may not be nugatory. A stay which would otherwise be granted ought not to be refused because the judge considers that another, which in his opinion will be a better remedy, will become available to the applicant at the conclusion of the proceedings.
It is in the discretion of the court to grant or refuse a stay but what has to be judged in every case is whether there are or not particular circumstances in the case to make an order staying execution. It has been said that the court as a general rule ought to exercise its best discretion in a way so as not to prevent the appeal, if successful from being nugatory, per Brett, LJ in Wilson v Church (No 2) 12 Ch D (1879) 454 at p 459. In the same case, Cotton LJ said at p 458:
“I will state my opinion that when a party is appealing, exercising his undoubted right of appeal, this court ought to see that the appeal, if successful, is not nugatory.”
9. The special circumstances around this application are that the applicants have not only filed the appeal against the judgment and decree of the lower court but also that, according to the information obtained from the Case Tracking System portal, the appeal has been heard and the judgment is due for delivery on 23 October 2025.
10. Thus, in less than four months’ time, depending on the outcome of the appeal and, of course, subject to any orders that that this Honourable Court may make, the respondent may execute the decree. If the instant application is dismissed, and therefore, the respondent allowed to execute the impugned decree, the execution process may be rendered futile if the pending judgment in Civil Appeal No. E006 of 2023 turns out to be in favour of the applicants. But if that appeal is dismissed, the respondent will be at liberty to proceed to execute, subject, of course to any other orders that the court may deem fit to grant. A delay of less than four months, awaiting the outcome of the appeal, is in my opinion, not inordinate.
11. For these reasons, I will allow prayer 3 of the applicants’ motion and hereby grant an interim order, staying execution of the ruling dated 19 September, 2024 and the decree issued in the Chief Magistrates Court Civil Case No. 155 of 2019 pending the delivery of judgment slated for 23 October 2025 in Civil Appeal No. E006 of 2023. The costs of this application will abide the outcome of the appeal.
12. Meanwhile, I direct that this appeal be consolidated with appeal no. E006 of 2023 which is the substantive appeal against the subordinate court’s judgment and decree.
“1. That this matter be certified urgent and service be dispensed with and the same be heard ex-parte.
2. That pending the hearing of this application inter parties, the Honourable Court be pleased to issue an interim order of stay of execution of the Ruling dated 19th September, 2024 pending the hearing and determination of this application.
3. That the Honourable Court be pleased to issue an interim order of stay of execution of the ruling dated 19th September, 2024 and any decree arising therefrom pending the hearing and determination of the appeal.
4. That the costs of this application be in the cause.”
2. The application is supported by the affidavit of Peter Umara, sworn on his own behalf, as the 1st applicant, and on behalf of the 2nd respondent.
3. According to Umara, the magistrates court delivered a ruling on 19 September, 2024, apparently on an application for stay pending appeal, according to which he was directed to pay a decretal sum of Kshs. 4,485,526.90 within 30 days from the date of the ruling. In default of payment, execution of the decree would proceed.
4. The appellants appealed because the 1st appellant could not afford to deposit the entire decretal sum as directed by the court and, in any event, they filed an appeal against the decree entered in the register as Honourable Court civil appeal no. E006 of 2023. The appellants are apprehensive that, their appeal notwithstanding, the respondent will proceed with execution and thereby render the appeal nugatory hence the instant application.
5. The application is opposed and a replying affidavit to this end has been sworn by Stephen Ngaruiya Mburu. Mburu has sworn that he is the chief executive officer of the respondent and also admits that the appellants were ordered to deposit the entire decretal amount in court apparently as security for the performance of the decree pending the hearing and determination of their appeal.
6. Rather than comply with the ruling, the appellants appealed against it and also filed a separate appeal against the judgment of the court. It is the respondent’s case that the judgment appealed against is as a result of what the respondent has described as a “long arduous process” for recovery of payment for goods supplied to the applicants way back in 2011.
7. The applicants, it is sworn, have failed to supply the company's bank accounts in support of their claim for impecunity and that their present application is an attempt to delay the respondent in enjoying the fruits of its judgment.
8. Provision of security for the performance of a decree is, of course, one of the conditions the court will consider, in exercising its discretion to stay execution of the decree or order pending appeal. Nonetheless, as the Court of Appeal held in Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR), the ultimate goal is to ensure that if the appeal is not frivolous, it is not rendered nugatory. A passage from the leading judgment of Madan, J.A. is instructive in this regard. The learned judge held as follows:
“If there is no other overwhelming hindrance, a stay ought to be granted so that an appeal, if successful, may not be nugatory. A stay which would otherwise be granted ought not to be refused because the judge considers that another, which in his opinion will be a better remedy, will become available to the applicant at the conclusion of the proceedings.
It is in the discretion of the court to grant or refuse a stay but what has to be judged in every case is whether there are or not particular circumstances in the case to make an order staying execution. It has been said that the court as a general rule ought to exercise its best discretion in a way so as not to prevent the appeal, if successful from being nugatory, per Brett, LJ in Wilson v Church (No 2) 12 Ch D (1879) 454 at p 459. In the same case, Cotton LJ said at p 458:
“I will state my opinion that when a party is appealing, exercising his undoubted right of appeal, this court ought to see that the appeal, if successful, is not nugatory.”
9. The special circumstances around this application are that the applicants have not only filed the appeal against the judgment and decree of the lower court but also that, according to the information obtained from the Case Tracking System portal, the appeal has been heard and the judgment is due for delivery on 23 October 2025.
10. Thus, in less than four months’ time, depending on the outcome of the appeal and, of course, subject to any orders that that this Honourable Court may make, the respondent may execute the decree. If the instant application is dismissed, and therefore, the respondent allowed to execute the impugned decree, the execution process may be rendered futile if the pending judgment in Civil Appeal No. E006 of 2023 turns out to be in favour of the applicants. But if that appeal is dismissed, the respondent will be at liberty to proceed to execute, subject, of course to any other orders that the court may deem fit to grant. A delay of less than four months, awaiting the outcome of the appeal, is in my opinion, not inordinate.
11. For these reasons, I will allow prayer 3 of the applicants’ motion and hereby grant an interim order, staying execution of the ruling dated 19 September, 2024 and the decree issued in the Chief Magistrates Court Civil Case No. 155 of 2019 pending the delivery of judgment slated for 23 October 2025 in Civil Appeal No. E006 of 2023. The costs of this application will abide the outcome of the appeal.
12. Meanwhile, I direct that this appeal be consolidated with appeal no. E006 of 2023 which is the substantive appeal against the subordinate court’s judgment and decree.