1. The Appellants filed a Notice of Motion application dated 26th July 2024 under Certificate of Urgency pursuant to Section 1A, 3A and 79G of the Civil Procedure Act, Order 42 Rule 6(2) of the Civil Procedure Rules and all other enabling provisions of the law.
2. The Appellants/Applicants seek for orders that there be a stay of execution of the judgment and decree herein pending the hearing and determination of the appeal, and that costs of this application be provided for.
3. The application is premised on grounds on its face and the Supporting Affidavit of the 1st Appellant/Applicant sworn on 26th July 2024 that the trial court rendered its decision on 27th June 2024, the subject of the appeal herein. That the Respondent may move to proclaim and cart away the Applicants’ goods unless restrained by an order of this court which may render the appeal herein superfluous. That the Applicants stand to be greatly prejudiced and will suffer substantial loss and damage if execution were to issue in respect of the judgment herein. The Applicants state that they are ready and willing to give security for the decretal amount in the form of a bank guarantee as a condition for stay of execution. That this application has been made without unreasonable delay and it is in the interest of justice that it is allowed.
4. The Respondent in their Replying Affidavit sworn on 16th August 2024 opposed the application that for stay of execution pending appeal to be issued, the conditions set out in Order 42 Rule 6 of the Civil Procedure Rules ought to be met. That the Applicants have not demonstrated substantial loss they are likely to suffer should this court decline to grant an order for stay. That great prejudice will be suffered by the Respondent as the offended party as her compensation adjudged by the court shall be in jeopardy. That the Respondent is a person of means and that the Applicants will not suffer in any way. The Respondent stated that in the event that this court is inclined to allow the application, the same should be conditional and that the Applicants should be ordered to deposit the entire decretal sum in a joint interest earning account of the advocates on record. The Respondent therefore prayed for dismissal of the application.
5. The application was canvassed by way of written submissions. The Appellants/Applicants in their submission dated 6th November 2024 argued that no appeal or second appeal operates as a stay of execution or proceedings under a decree or order appealed from. That the Applicants have good grounds and high chances of success of the appeal as outlined in the Memorandum of Appeal. That the Applicants are ready and willing to give security for the decretal amount in the form of insurance bond or bank guarantee or in any other form or condition as the court may deem fit to grant. That the appeal as well as the application have been filed without any undue delay and by the fact that the Applicants have requested to be issued with certified copies of the proceedings. Reliance was placed on Order 42 Rule 6 (1) of the Civil Procedure Rules.
6. The Applicants cited the cases of JMM v PM (2018) eKLR and James Wangalwa & Another v Agnes Naliaka Cheseto, Bungoma High Court Misc. Application No. 42 of 2011 and submitted that if stay of execution is not granted, the Applicants will suffer irreparable damage in the event of an execution. The Applicants further relied on the holding in National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another (2006) eKLR and argued that the Respondent is a person of unknown means and in case the decretal sum is paid out she may not repay or refund the same should the appeal be successful. That guiding principles were laid out in the application of this nature in the case of Amal Hauliers Limited v Abdulnasir Abubakar Hassan (2017) eKLR. The Applicants prayed that the application is allowed as prayed.
7. The Respondent filed submissions dated 18th November 2024 and contended that the principles guiding grant of stay of execution pending appeal are well settled and provided for under Order 42 Rule 6(2) of the Civil Procedure Rules. That in the case of Halai & Another v Thornton & Turpin (1963) Ltd (1990) eKLR, the Court of Appeal highlighted the conditions for grant of stay of execution pending appeal. That the first condition that the Applicants have failed to demonstrate is the substantial loss that they are likely to suffer and that the Respondents have not commenced any execution process despite the stay period having lapsed. The Respondent cited the case of Edwin Kipng’eno Rono v Kenyatta Matibabu Sacco Society Ltd & Another (2021) eKLR and submitted that the orders sought herein ought not be granted.
8. The Respondent contended that since judgment was delivered on 27th June 2024, the Applicants have not furnished any security towards settlement of the decretal sum. That this clearly shows that that the Applicants are not willing to abide by the principles required before an order for stay of execution pending appeal is granted. The Respondent placed reliance on the holding in the case of Baraza Tindi & Another v BMW (2021) eKLR. The Respondent submitted that in the unlikely event that the court allows the application, the same should be conditional and that the Applicants deposit the whole of the decretal sum in a joint interest earning account of the advocates on record.
9. I have considered Notice of Motion application dated 26th July 2024, the Replying Affidavit sworn on 16th August 2024 and submissions by the parties. The issue for determination is whether the Appellants/Applicants’ application for stay of execution pending appeal is merited.
10. Order 42 Rule 6 (1) and (2) of the Civil Procedure Rules provides for stay of execution pending appeal 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 appeal case of 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 referred may apply to the appellate 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.
11. Judgment of the trial court that the Applicants have appealed against was delivered on 27th June 2024. The Appellants/Applicants filed the Memorandum of Appeal on 24th July 2024 while the application herein was filed on 26th July 2024. This court finds that the application herein has been made without unreasonable delay.
12. On whether substantial loss may result, the Appellants/Applicants on the one hand maintained that that the Respondent may move to proclaim and cart away the Applicants’ goods unless restrained by an order of this court which may render the appeal herein superfluous. That the Applicants stand to be greatly prejudiced and will suffer substantial loss and damage if execution were to issue in respect of the judgment herein. The Respondent on the other hand argued that the Appellants/Applicants have not demonstrated substantial loss they are likely to suffer should this court decline to grant an order for stay.
13. This court has relied on the decision in Tabro Transporters Ltd. v Absalom Dova Lumbasi (2012) eKLR that: -
“The discretionary relief of stay of execution pending appeal is designed on the basis that no one would be worse off by virtue of an order of the court; as such order does not introduce any disadvantage, but administers the justice that the case deserves. This is in recognition that both parties have rights; the Appellant to his appeal which includes the prospects that the appeal will not be rendered nugatory; and the decree holder to the decree which includes full benefits under the decree. The court in balancing the two competing rights focuses on their reconciliation which is not a question of discrimination.”
14. Pursuant to the above, this court finds that the Appellants/Applicants have satisfied the condition that substantial loss may result if the order of stay of execution is not granted.
15. On the issue of security, the court in Arun C. Sharma v Ashana Raikundalia T/A Rairundalia & Co. Advocates (2014) eKLR held that: -
“The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the Applicant. It is not to punish the judgment debtor … Civil process is quite different because in civil process the judgment is like a debt hence the Applicants become and are judgment debtors in relation to the respondent. That is why any security given under Order 42 rule 6 of the Civil Procedure Rules acts as security for due performance of such decree or order as may ultimately be binding on the Applicants. I presume the security must be one which can serve that purpose.”
16. In addition to the sentiments of the court in the holding above, this court has the discretion to make orders on security for the interest of justice taking into account the fact that it is important to keep money in an interest earning account because it depreciates in value.
17. In the upshot, the Appellants/Applicants’ Notice of Motion application dated 26th July 2024 is merited and allowed. I grant orders of stay of execution of the judgment and decree issued on 27th June 2024 in Mombasa Chief Magistrates Court Civil Suit No. E1643 of 2022 in the following terms: -
(a) That the Appellants/Applicants shall within 30 days deposit the decretal sum into an interest earning account in a reputable commercial bank to be held by advocates for both parties.
(b) That the Appellants/Applicants shall set down the appeal within 30 days from the date hereof.
(c) That in default, the prayers for stay of execution shall be deemed to have been dismissed with costs.
(d) Costs shall be in the cause.
DATED and DELIVERED VIA CTS at MOMBASA this 21ST day of JANUARY, 2025
2. The Appellants/Applicants seek for orders that there be a stay of execution of the judgment and decree herein pending the hearing and determination of the appeal, and that costs of this application be provided for.
3. The application is premised on grounds on its face and the Supporting Affidavit of the 1st Appellant/Applicant sworn on 26th July 2024 that the trial court rendered its decision on 27th June 2024, the subject of the appeal herein. That the Respondent may move to proclaim and cart away the Applicants’ goods unless restrained by an order of this court which may render the appeal herein superfluous. That the Applicants stand to be greatly prejudiced and will suffer substantial loss and damage if execution were to issue in respect of the judgment herein. The Applicants state that they are ready and willing to give security for the decretal amount in the form of a bank guarantee as a condition for stay of execution. That this application has been made without unreasonable delay and it is in the interest of justice that it is allowed.
4. The Respondent in their Replying Affidavit sworn on 16th August 2024 opposed the application that for stay of execution pending appeal to be issued, the conditions set out in Order 42 Rule 6 of the Civil Procedure Rules ought to be met. That the Applicants have not demonstrated substantial loss they are likely to suffer should this court decline to grant an order for stay. That great prejudice will be suffered by the Respondent as the offended party as her compensation adjudged by the court shall be in jeopardy. That the Respondent is a person of means and that the Applicants will not suffer in any way. The Respondent stated that in the event that this court is inclined to allow the application, the same should be conditional and that the Applicants should be ordered to deposit the entire decretal sum in a joint interest earning account of the advocates on record. The Respondent therefore prayed for dismissal of the application.
5. The application was canvassed by way of written submissions. The Appellants/Applicants in their submission dated 6th November 2024 argued that no appeal or second appeal operates as a stay of execution or proceedings under a decree or order appealed from. That the Applicants have good grounds and high chances of success of the appeal as outlined in the Memorandum of Appeal. That the Applicants are ready and willing to give security for the decretal amount in the form of insurance bond or bank guarantee or in any other form or condition as the court may deem fit to grant. That the appeal as well as the application have been filed without any undue delay and by the fact that the Applicants have requested to be issued with certified copies of the proceedings. Reliance was placed on Order 42 Rule 6 (1) of the Civil Procedure Rules.
6. The Applicants cited the cases of JMM v PM (2018) eKLR and James Wangalwa & Another v Agnes Naliaka Cheseto, Bungoma High Court Misc. Application No. 42 of 2011 and submitted that if stay of execution is not granted, the Applicants will suffer irreparable damage in the event of an execution. The Applicants further relied on the holding in National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another (2006) eKLR and argued that the Respondent is a person of unknown means and in case the decretal sum is paid out she may not repay or refund the same should the appeal be successful. That guiding principles were laid out in the application of this nature in the case of Amal Hauliers Limited v Abdulnasir Abubakar Hassan (2017) eKLR. The Applicants prayed that the application is allowed as prayed.
7. The Respondent filed submissions dated 18th November 2024 and contended that the principles guiding grant of stay of execution pending appeal are well settled and provided for under Order 42 Rule 6(2) of the Civil Procedure Rules. That in the case of Halai & Another v Thornton & Turpin (1963) Ltd (1990) eKLR, the Court of Appeal highlighted the conditions for grant of stay of execution pending appeal. That the first condition that the Applicants have failed to demonstrate is the substantial loss that they are likely to suffer and that the Respondents have not commenced any execution process despite the stay period having lapsed. The Respondent cited the case of Edwin Kipng’eno Rono v Kenyatta Matibabu Sacco Society Ltd & Another (2021) eKLR and submitted that the orders sought herein ought not be granted.
8. The Respondent contended that since judgment was delivered on 27th June 2024, the Applicants have not furnished any security towards settlement of the decretal sum. That this clearly shows that that the Applicants are not willing to abide by the principles required before an order for stay of execution pending appeal is granted. The Respondent placed reliance on the holding in the case of Baraza Tindi & Another v BMW (2021) eKLR. The Respondent submitted that in the unlikely event that the court allows the application, the same should be conditional and that the Applicants deposit the whole of the decretal sum in a joint interest earning account of the advocates on record.
9. I have considered Notice of Motion application dated 26th July 2024, the Replying Affidavit sworn on 16th August 2024 and submissions by the parties. The issue for determination is whether the Appellants/Applicants’ application for stay of execution pending appeal is merited.
10. Order 42 Rule 6 (1) and (2) of the Civil Procedure Rules provides for stay of execution pending appeal 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 appeal case of 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 referred may apply to the appellate 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.
11. Judgment of the trial court that the Applicants have appealed against was delivered on 27th June 2024. The Appellants/Applicants filed the Memorandum of Appeal on 24th July 2024 while the application herein was filed on 26th July 2024. This court finds that the application herein has been made without unreasonable delay.
12. On whether substantial loss may result, the Appellants/Applicants on the one hand maintained that that the Respondent may move to proclaim and cart away the Applicants’ goods unless restrained by an order of this court which may render the appeal herein superfluous. That the Applicants stand to be greatly prejudiced and will suffer substantial loss and damage if execution were to issue in respect of the judgment herein. The Respondent on the other hand argued that the Appellants/Applicants have not demonstrated substantial loss they are likely to suffer should this court decline to grant an order for stay.
13. This court has relied on the decision in Tabro Transporters Ltd. v Absalom Dova Lumbasi (2012) eKLR that: -
“The discretionary relief of stay of execution pending appeal is designed on the basis that no one would be worse off by virtue of an order of the court; as such order does not introduce any disadvantage, but administers the justice that the case deserves. This is in recognition that both parties have rights; the Appellant to his appeal which includes the prospects that the appeal will not be rendered nugatory; and the decree holder to the decree which includes full benefits under the decree. The court in balancing the two competing rights focuses on their reconciliation which is not a question of discrimination.”
14. Pursuant to the above, this court finds that the Appellants/Applicants have satisfied the condition that substantial loss may result if the order of stay of execution is not granted.
15. On the issue of security, the court in Arun C. Sharma v Ashana Raikundalia T/A Rairundalia & Co. Advocates (2014) eKLR held that: -
“The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the Applicant. It is not to punish the judgment debtor … Civil process is quite different because in civil process the judgment is like a debt hence the Applicants become and are judgment debtors in relation to the respondent. That is why any security given under Order 42 rule 6 of the Civil Procedure Rules acts as security for due performance of such decree or order as may ultimately be binding on the Applicants. I presume the security must be one which can serve that purpose.”
16. In addition to the sentiments of the court in the holding above, this court has the discretion to make orders on security for the interest of justice taking into account the fact that it is important to keep money in an interest earning account because it depreciates in value.
17. In the upshot, the Appellants/Applicants’ Notice of Motion application dated 26th July 2024 is merited and allowed. I grant orders of stay of execution of the judgment and decree issued on 27th June 2024 in Mombasa Chief Magistrates Court Civil Suit No. E1643 of 2022 in the following terms: -
(a) That the Appellants/Applicants shall within 30 days deposit the decretal sum into an interest earning account in a reputable commercial bank to be held by advocates for both parties.
(b) That the Appellants/Applicants shall set down the appeal within 30 days from the date hereof.
(c) That in default, the prayers for stay of execution shall be deemed to have been dismissed with costs.
(d) Costs shall be in the cause.
DATED and DELIVERED VIA CTS at MOMBASA this 21ST day of JANUARY, 2025