Introduction
1. Before court is a Notice of Motion dated 6th April, 2025 filed by the respondent seeking stay of execution of the decree herein pending the hearing and determination of the intended appeal at the Court of Appeal. The application is predicated on the supporting affidavit of the respondent sworn on 6th April, 2025. The respondent’s case is that judgment herein was delivered on 27th March, 2025 and that having been dissatisfied with the same, he filed a Notice of Appeal. He maintained that he has an arguable appeal capable of succeeding.
2. He also stated that he had stayed on the suit property since 1997. That he uses the land for subsistence farming and that it is a source of his livelihood. That he lives on the land with his wife and children and that he stands to suffer substantial loss if judgment herein is not stayed because he will be rendered destitute. He expressed his willingness to provide security and stated that he had crops growing on the land.
3. The application was opposed. Is-Haq Ibrahim Afubwa the 1st appellant filed a replying affidavit sworn on 10th May, 2024. He stated that he has a right to execute the judgment and enjoy the fruits thereof and that the applicant had not given security. He argued that while the respondent can only raise points of law on his appeal, the draft Memorandum of Appeal had both matters of fact and law.
4. Further that stay orders are discretionary and that the applicant had failed to persuade the court to allow the application.
5. The application was canvassed by way of written submissions. On record are the applicant’s submissions dated 20th May, 2025, which the court has duly considered.
Analysis and determination.
6. Having carefully considered the application, response thereto and parties’ rival submissions, the single issue that arise for the court’s determination is whether the applicant has met the threshold for grant of orders of stay of execution of the judgment delivered in this appeal, pending hearing and determination of the intended appeal to the Court of Appeal.
7. Order 42 Rule 6 of the Civil Procedure Rules provides for the jurisdiction of the court to grant orders of stay of execution pending appeal as follows;
Stay in case of appeal [Order 42, rule 6]
(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.
(2) No order for stay of execution shall be made under subrule (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.
8. It is trite that imminent execution cannot in itself be a basis for grant of stay of execution pending appeal, as execution is a lawful process that follows grant of an order, judgment or decree by a court. Therefore, for an applicant to succeed in seeking stay pending appeal, they must demonstrate that they stand to suffer substantial loss if stay is not granted; that they have sought for stay without unreasonable delay and show willingness to provide security for the due performance of the decree that may issue against them.
9. In the case of James Wangalwa & Another vs. Agnes Naliaka Cheseto [2012] eKLR, the court stated as follows;
“No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal … the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo Because such loss would render the appeal nugatory.”
10. Similarly, in the case of Butt vs Rent Restriction Tribunal [1979]KLR the Court of Appeal held that:
“a.The power of the court to grant or refuse an application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal.
b.Secondly, the general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judge’s discretion.
c.Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the applicant at the end of the proceedings.
d.Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. The court in exercising its powers under Order XLI Rule 4(2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security of costs as ordered will cause the order for stay of execution to lapse.
11. In Tropical Commodities Suppliers Ltd & Others vs. International Credit Bank Ltd (in liquidation) [2004] 2 EA 331 the court discussed the element of substantial loss thus;
“Substantial loss does not represent any particular mathematical formula. Rather, it is a qualitative concept. It refers to any loss, great or small, that is of real worth or value as distinguished from a loss without value or a loss that is merely nominal.”
12. In the instant matter, the applicant stated that together with his family, he is in occupation of the suit property since 1997 where he obtains his livelihood and that if he is evicted as ordered by this court, he will be rendered destitute. The fact of his long occupation of the suit property is not contested by the respondent whose position is that he is lawfully entitled to enjoy the fruits of the judgment. Since the fact that the applicant’s home is on the suit property is not contested, I find and hold that he has demonstrated substantial loss if execution proceeds, hence deserves orders of stay of execution. In the premises, the appellant’s Notice of motion dated 6th April 2025 is hereby allowed as follows;
a) A temporary order of stay of execution is hereby granted to the applicant staying the judgment of this court made on 27th March 2025 for a period of 24 months from the date of this ruling.
b) Each party shall bear its own costs of the application.
13. It is so ordered.
DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 9TH DAY OF JULY, 2025
In the presence of;
Mr. Ligare for the appellant/applicant
Mr. Momanyi for the respondent
Court Assistant: M. Nguyai