1. The applicant herein filed the application dated 13.1.25 seeking :
a. ………………………………..spent
b. …………………………………spent
c. This Honourable Court be pleased to grant interim stay of execution of the Judgment in Kisii CMCC No. E002 of 2021 dated 17.12.2024 and all the consequential orders pending hearing and determination of this application.
d. This Honourable Court be pleased to extend time within which to appeal against the Judgment and Decree of this court dated 17. 12.24 .
e. Costs of the application be provided for .
2. When the matter came up for directions on 30.1.2025 the applicant offered to deposit the entire decretal sum in a joint interest earning account in the names of both counsel herein. Counsel for the respondent opposed the same and suggested that ½ of the decretal sum be deposited in a joint interest earning account while the other half be released to them .
The applicant replied that their proposal was reasonable and that the respondent had not demonstrated that he had means to refund the sum incase the appeal succeeds .
3. This court directed that the application proceeds by way of written submissions and both parties complied .
4. The applicant submitted that The Respondent in his replying affidavit dated the 29th day of January 2025, does not oppose the application on condition that they want the Respondent be paid half of the Decretal sum while the other shall be deposited in fixed term join interests earning account in the joint names of both parties .
5. Further that this Honourable Court is duty bound to safeguard the subject matter and ensure that the same is not depleted or parties are not put at disadvantaged position that when the appeal is ultimately successful, whoever wins may not be able to access the fruit ofjudgment with ease.
6. It was also submitted that parties have a right to access justice and to appeal to the highest court in the land .
7. Counsel cited the case of Kennedy Omondi v Charles New Nyamote [20181 eKLR, wherein the court held as follows: -
‘’The right of appeal is enshrined in the right to a fair hearing. A party has a right to seek justice to the highest court in the land. Both Order 42 Rule 6 ofthe Civil Procedure Rules and Rule 5(2)(b) ofthe Court ofAppeal Rules provideforstay ofexecution pending appeal.’’
Socfinac Company Limited v Nelphat Kimotho Muturi [2013/ eKLR where the Court held:
"I have considered theforegoing. Theprinciples guiding the grant of a stay ofexecution pending appeal are well settled These principles are provided under Order 42 rule 6(2) of the Civil Procedure Rules under which the court is to be satisfied that substantial loss may result to the applicant unless the order is made; that the application has been made without unreasonable delay; and that such security as the court ordersfor the due performance ofsuch decree or order as may ultimately be binding on him has been given by the applicant. In Vishram Ravji Halai vs. Thornton & Turpin Civil Application No. Nairobi 15 of1990 [1990] KLR 365, the Court ofAppeal held that whereas the Court ofAppeal's power to grant a stay pending appeal is unfettered, the High Court's jurisdiction to do so under Order 41 rule 6 is fettered by three conditions namely, establishment of a sufficient cause, satisfaction ofsubstantial loss and the furnishing ofsecurity. Further the application must be made without unreasonable delay. court nuast strive to achieve the twin principles of equality ofarms andproportionality.
8. On whether the respondent will be able to refund the ½ decretal sum incase the appeal succeeds, the applicant said that the respodent did not address this issue . The applicant cited the case of Kenya Shell Limited v Benjamin Karuga Kibiru & Another [1986] eKLR the Court ofAppeal held:
"It is usually a good rule to see if order XLI rule 4 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss in its various forms, is the corner stone of both jurisdictions for granting a stay. That is what has to be prevented. Therefore without this evidence it is difficult to see why the respondents should be kept out oftheir money. " Also the case of National Industrial Credit Bank Limited—V- Aquinas Francis Wasike and Another citied by the High Court in Stanley Karanja Wainaina and Another —V- Ridon Anyangu Mutubwa (2016) eKLR, the court stated asfollows —
"This court has said before and it would bear repeating that while the legal duty is on an applicant to prove the allegation that an appeal would be rendered nugatory because a respondent would be unable to pay back the decretal sum, it is unreasonable to expect such an applicant to know in detail the resources owned by a respondent or lack ofthem. Once an applicant expresses a respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the respondent to show What resources he has since that is a matter which is peculiarly, within his knowledge.
9. Counsel Submitted that in the the instant application it has not demonstrated that the respondent he will be able to refund the decretal sum should the appeal succeed and that the applicant will suffer substantial loss if half decretal sum is released to the respondent. The cases of Amal Hauliers Limited v Abdulnasir Abukar Hassan [20171 eKLR
And National Industrial Credit Bank Ltd v Aquinas Francis Wasike & another [20061 eKLR.
Were also cited to buttress the point.
10. Counsel urged this court the allow the applicationon condition that the entire decretal sum is deposited in a joint interest earning account to be held jointly by counsel for the parties herein within 30 days from date of this ruling.
11. The respondent filed his replying affidavit sworn on 29.1.25 in which he opposed the application saying it was meant to deny him of the fruits of his judgment and he proposed that half of the decretal sum be deposited in a joint interest earning account in the names of both firms of advocates on record herein while the other half be released to him . Counsel for the respondent submitted that the court has discretion to make orders for security under Order 42 Rule 6 of the Civil procedure rules and that in doing this the court ought to balance the right of appeal and the right of the respondent to enjoy the fruits of his judgment .Counsel cited the case of Arun C Sharma v Ashana Raikundalia t/a A Raikundalia & Co Advocates & 2 others [2014] KEHC 2430 (KLR) Where it was 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. The alternative security being offered presents several problems. The first one-the security is owned by another person. This is a civil suit where the Applicants are judgment-debtors. But, the Applicants seem to have borrowed from the criminal procedures where a person stands surety for the attendance of another in court. Civil process is quite different because, in a 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 the 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. ‘’ Also the case of SAMVIR TRUSTEE LIMITED v GUARDIAN BANK LIMITED [2007] KEHC 2438 (KLR)
Where it was held ‘’ 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. The respondent is asserting that matured right against the applicant/defendant. ‘’
12. I have carefully considered the application the response and the law it is not disputed that the applicant is entitled to stay of execution pending appeal under order 42 Rule 6 of the Civil Procedure Rules . The only borne of contention is whether the entire decretal sum should be deposited in a in a joint interest earning account to be held jointly by counsel for the parties herein within 30 days from date of this ruling or whether half of the decretal sum ought to be deposited in a joint interest earning account in the names of both firms of advocates on record herein while the other half be released to the respondent .
13. The applicant argued that the respondent has not demonstrated that he will not be able to refund the ½ decretal sum incase the appeal succeeds and thus it will suffer substantial loss. The respondent o his part argued that he is a decree holder and thus entitled to enjoy the fruits of his judgment and hence is said proposal . Further that the court ought to balance his right to enjoy the fruits of the judgment and the right of appeal . I agree that there has to be a delicate balance between the rights of the respondent to enjoy the fruits of his judgment as a decree holder and the applicant’s right of appeal .
14. On whether the applicant will suffer substantial loss if half the decretal sum is released to the respondent . The respondent has not stated whether he has capacity to refund the half decretal sum if the appeal succeeds.. This is crucial as incase he is unable to refund the sum then the applicant will suffer substantial loss . On the other hand if the entire decretal sum is deposited in a joint interest earning account as proposed then the sum will be safe and will earn interest which will be eventually enjoyed by the successful party .
15. I thus find that it will be just and fair in the circumstances to have the entire decretal sum deposited in a joint interest earning account to be opened in the joint names of both counsel herein within 30 days from today.
16. The applicant is granted leave to file and serve the intended appeal within 14 days from today .
17. Record of appeal be filed and served within 45 days from today .
18. Mention on 24.6.25 before the Deputy registrar for Compliance
19. Costs be in the cause .
T.A ODERA
JUDGE
7.5.25
Delivered VIA CTS PLATFORM
a. ………………………………..spent
b. …………………………………spent
c. This Honourable Court be pleased to grant interim stay of execution of the Judgment in Kisii CMCC No. E002 of 2021 dated 17.12.2024 and all the consequential orders pending hearing and determination of this application.
d. This Honourable Court be pleased to extend time within which to appeal against the Judgment and Decree of this court dated 17. 12.24 .
e. Costs of the application be provided for .
2. When the matter came up for directions on 30.1.2025 the applicant offered to deposit the entire decretal sum in a joint interest earning account in the names of both counsel herein. Counsel for the respondent opposed the same and suggested that ½ of the decretal sum be deposited in a joint interest earning account while the other half be released to them .
The applicant replied that their proposal was reasonable and that the respondent had not demonstrated that he had means to refund the sum incase the appeal succeeds .
3. This court directed that the application proceeds by way of written submissions and both parties complied .
4. The applicant submitted that The Respondent in his replying affidavit dated the 29th day of January 2025, does not oppose the application on condition that they want the Respondent be paid half of the Decretal sum while the other shall be deposited in fixed term join interests earning account in the joint names of both parties .
5. Further that this Honourable Court is duty bound to safeguard the subject matter and ensure that the same is not depleted or parties are not put at disadvantaged position that when the appeal is ultimately successful, whoever wins may not be able to access the fruit ofjudgment with ease.
6. It was also submitted that parties have a right to access justice and to appeal to the highest court in the land .
7. Counsel cited the case of Kennedy Omondi v Charles New Nyamote [20181 eKLR, wherein the court held as follows: -
‘’The right of appeal is enshrined in the right to a fair hearing. A party has a right to seek justice to the highest court in the land. Both Order 42 Rule 6 ofthe Civil Procedure Rules and Rule 5(2)(b) ofthe Court ofAppeal Rules provideforstay ofexecution pending appeal.’’
Socfinac Company Limited v Nelphat Kimotho Muturi [2013/ eKLR where the Court held:
"I have considered theforegoing. Theprinciples guiding the grant of a stay ofexecution pending appeal are well settled These principles are provided under Order 42 rule 6(2) of the Civil Procedure Rules under which the court is to be satisfied that substantial loss may result to the applicant unless the order is made; that the application has been made without unreasonable delay; and that such security as the court ordersfor the due performance ofsuch decree or order as may ultimately be binding on him has been given by the applicant. In Vishram Ravji Halai vs. Thornton & Turpin Civil Application No. Nairobi 15 of1990 [1990] KLR 365, the Court ofAppeal held that whereas the Court ofAppeal's power to grant a stay pending appeal is unfettered, the High Court's jurisdiction to do so under Order 41 rule 6 is fettered by three conditions namely, establishment of a sufficient cause, satisfaction ofsubstantial loss and the furnishing ofsecurity. Further the application must be made without unreasonable delay. court nuast strive to achieve the twin principles of equality ofarms andproportionality.
8. On whether the respondent will be able to refund the ½ decretal sum incase the appeal succeeds, the applicant said that the respodent did not address this issue . The applicant cited the case of Kenya Shell Limited v Benjamin Karuga Kibiru & Another [1986] eKLR the Court ofAppeal held:
"It is usually a good rule to see if order XLI rule 4 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss in its various forms, is the corner stone of both jurisdictions for granting a stay. That is what has to be prevented. Therefore without this evidence it is difficult to see why the respondents should be kept out oftheir money. " Also the case of National Industrial Credit Bank Limited—V- Aquinas Francis Wasike and Another citied by the High Court in Stanley Karanja Wainaina and Another —V- Ridon Anyangu Mutubwa (2016) eKLR, the court stated asfollows —
"This court has said before and it would bear repeating that while the legal duty is on an applicant to prove the allegation that an appeal would be rendered nugatory because a respondent would be unable to pay back the decretal sum, it is unreasonable to expect such an applicant to know in detail the resources owned by a respondent or lack ofthem. Once an applicant expresses a respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the respondent to show What resources he has since that is a matter which is peculiarly, within his knowledge.
9. Counsel Submitted that in the the instant application it has not demonstrated that the respondent he will be able to refund the decretal sum should the appeal succeed and that the applicant will suffer substantial loss if half decretal sum is released to the respondent. The cases of Amal Hauliers Limited v Abdulnasir Abukar Hassan [20171 eKLR
And National Industrial Credit Bank Ltd v Aquinas Francis Wasike & another [20061 eKLR.
Were also cited to buttress the point.
10. Counsel urged this court the allow the applicationon condition that the entire decretal sum is deposited in a joint interest earning account to be held jointly by counsel for the parties herein within 30 days from date of this ruling.
11. The respondent filed his replying affidavit sworn on 29.1.25 in which he opposed the application saying it was meant to deny him of the fruits of his judgment and he proposed that half of the decretal sum be deposited in a joint interest earning account in the names of both firms of advocates on record herein while the other half be released to him . Counsel for the respondent submitted that the court has discretion to make orders for security under Order 42 Rule 6 of the Civil procedure rules and that in doing this the court ought to balance the right of appeal and the right of the respondent to enjoy the fruits of his judgment .Counsel cited the case of Arun C Sharma v Ashana Raikundalia t/a A Raikundalia & Co Advocates & 2 others [2014] KEHC 2430 (KLR) Where it was 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. The alternative security being offered presents several problems. The first one-the security is owned by another person. This is a civil suit where the Applicants are judgment-debtors. But, the Applicants seem to have borrowed from the criminal procedures where a person stands surety for the attendance of another in court. Civil process is quite different because, in a 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 the 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. ‘’ Also the case of SAMVIR TRUSTEE LIMITED v GUARDIAN BANK LIMITED [2007] KEHC 2438 (KLR)
Where it was held ‘’ 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. The respondent is asserting that matured right against the applicant/defendant. ‘’
12. I have carefully considered the application the response and the law it is not disputed that the applicant is entitled to stay of execution pending appeal under order 42 Rule 6 of the Civil Procedure Rules . The only borne of contention is whether the entire decretal sum should be deposited in a in a joint interest earning account to be held jointly by counsel for the parties herein within 30 days from date of this ruling or whether half of the decretal sum ought to be deposited in a joint interest earning account in the names of both firms of advocates on record herein while the other half be released to the respondent .
13. The applicant argued that the respondent has not demonstrated that he will not be able to refund the ½ decretal sum incase the appeal succeeds and thus it will suffer substantial loss. The respondent o his part argued that he is a decree holder and thus entitled to enjoy the fruits of his judgment and hence is said proposal . Further that the court ought to balance his right to enjoy the fruits of the judgment and the right of appeal . I agree that there has to be a delicate balance between the rights of the respondent to enjoy the fruits of his judgment as a decree holder and the applicant’s right of appeal .
14. On whether the applicant will suffer substantial loss if half the decretal sum is released to the respondent . The respondent has not stated whether he has capacity to refund the half decretal sum if the appeal succeeds.. This is crucial as incase he is unable to refund the sum then the applicant will suffer substantial loss . On the other hand if the entire decretal sum is deposited in a joint interest earning account as proposed then the sum will be safe and will earn interest which will be eventually enjoyed by the successful party .
15. I thus find that it will be just and fair in the circumstances to have the entire decretal sum deposited in a joint interest earning account to be opened in the joint names of both counsel herein within 30 days from today.
16. The applicant is granted leave to file and serve the intended appeal within 14 days from today .
17. Record of appeal be filed and served within 45 days from today .
18. Mention on 24.6.25 before the Deputy registrar for Compliance
19. Costs be in the cause .
T.A ODERA
JUDGE
7.5.25
Delivered VIA CTS PLATFORM