Introduction
1. By a Judgement delivered on 16th December 2024, in MC ELC/ 031 of 2021, the trial court entered judgement against the defendants now appellants in the following terms;
“3. From the foregoing I find that the Plaintiff/1st defendant in the counterclaim has proved his case on a balance of probabilities and I enter judgement in his favour as against the 1st and 2nd defendants/counter claimers as prayed for in the plaint and grant him prayers (a), (b), (c) (d) (e) of the plaint. The 1st and 2nd defendants (Plaintiffs/counter claimers) to voluntary vacate suit parcels Cheragany/Kapcherop 1665,1666,1776, 1777, 1780, 1781 within 30 days of this judgement failing which forceful eviction to issue.
4.The 1st and 2nd Defendants (Plaintiff/counter claimers) have failed to prove their counterclaim on a balance of probabilities against the Plaintiff/1st defendant and the 2nd and 3rd defendant in the counterclaim and I dismiss the counterclaim with cost to the Plaintiff/1st defendant, 2nd and 3rd defendant in the counter claim.
2. Dissatisfied by the Judgement of the lower court, the defendants appealed to this court and filed an application dated 20th January 2025 seeking the following orders;
a) THAT this application be certified urgent service be dispensed with and the same be heard exparte in the first instance.
b) THAT the honourable court be pleased to issued an order of stay of execution of the judgment/decree in MCELC/E031/2021 pending hearing of this application interparties.
c) THAT the honourable court be pleased to issue an order of stay of execution of the judgment/decree in MCELC/E031/2021 pending hearing and determination of the appeal.
d) THAT the honourable court be pleased to issue an order of inhibition prohibiting all dealings in land title deed numbers Cherangany/Kapcherop/1666, 1776, 1777, 1780 and 1781 pending hearing and determination of the appeal.
e) THAT the costs of the application be provided for.
3. The application is supported by the affidavit of the 1st applicant sworn on 20th January 2025 on which the grounds on the face of the application are reiterated. He deposes that an application seeking orders for stay of execution pending appeal dated 23rd December 2024 was filed before the trial court; that the application was served on both parties and an affidavit of service filed; that no response was filed by any of the parties; that when the application came for inter parties hearing, the trial court dismissed the application with costs on the ground that the orders sought should be sought in the high court as an appeal had been filed; that since no appeal operates as a stay of execution, the instant application is necessary.
4. When the application came for inter parties hearing on 30th January 2025, counsel for the plaintiff/1st respondent informed the court that he did not oppose the application.
Analysis and determination
5. From the application, the grounds and affidavit in support, I find the issue for determination to be whether the applicants have made up a case for being granted the orders sought.
6. It is trite law that an appeal does not operate as an automatic stay of execution. The conditions which a party must establish in order for the court to order stay of execution are provided for under Order 42 Rule 6(2) Civil Procedure Rules;
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 orders 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 1st 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.’’
7. Thus, under Order 42 Rule 6(2) of the Civil Procedure Rules, an applicant should satisfy the court that:
1. Substantial loss may result to him/her unless the order is made;
2. That the application has been made without unreasonable delay; and
3. The applicant has given such security as the court orders for the due performance of such decree or order as may ultimately be binding on him.
8. Substantial loss was explained in the case of James Wangalwa & Another vs Agnes Naliaka Cheseto [2012] eKLR 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.’’
9. To demonstrate substantial loss, the applicant is required to show how execution shall irreparably affect him/her or will alter the status quo to his/her detriment therefore rendering the appeal nugatory. In the case before the court, one of the orders granted by the lower court was an eviction order in the event the defendants failed to vacate the suit properties within 30 days. I am of the view that if the order of stay of execution sought is not granted, the plaintiff/ respondent, may execute the judgement/decree and evict the defendants/applicants from the suit properties.
10. On whether the application has been made without unreasonable delay, Judgment in this matter was delivered on 16th December 2024 and the applicant filed the instant application on 20th January 2025 barely 30 days after delivery of the judgement by the trial court. I find the application to have been filed expeditiously.
11. A person seeking an order of stay pending appeal is under a legal obligation to furnish security for performance of such obligation as may be binding on him arising from the appeal. The purpose of security was explained in the case of Arun C. Sharma vs Ashana Raikundalia t/a Raikundalia & Co. Advocates & 2 Others [2014] eKLR where the court stated: -
“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 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.’’
12. In the instant case, the applicants have not offered any security to guarantee the due performance of such decree or order as may ultimately be binding on the applicants. However, the issue of security is discretionary and it is upon the court to determine the same.
13. Finally, the right of appeal must be balanced against the right of the plaintiff to enjoy the fruits of the judgment delivered in his favour. See the case of Samvir Trustee Limited vs Guardian Bank Limited [2007] eKLR where the court stated;
“…..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 judgment. It is a fundamental factor to bear in mind that a successful party is prima facie entitled to fruits of his judgment; hence the consequence of a judgment is that it has defined the rights of a party with definitive conclusion.”
14. I have carefully read and considered the application, the grounds advanced in support and I find the sole issue for the courts determination to be whether the applicant has made up a case for being granted the orders sought.
15. To be granted an order of stay of execution of the judgment/decree, the applicant has to satisfy the conditions under Order 42 Rule 6 of the Civil Procedure Rules. In this case the applicants have demonstrated that substantial loss may result to them if an order of stay of execution is not granted as they may be evicted from the suit property. The application is also found to have been filed expeditiously. I am also of the view that justice will be served by balancing the appellants/ applicant’s right of appeal with the plaintiffs/respondent’s right to enjoy the fruits of his judgment.
16. Consequently, I am inclined to allow prayer (c) in the appellants/applicant’s application dated 20th January 2025 on condition that the appellant/applicant shall, within 21 days from the date of delivery of this ruling, deposit in a joint interest earning account to be opened in the joint names of the advocates for the parties Kshs. 250,000/= being security for costs, failing which the application shall automatically stand dismissed.
17. Orders accordingly.
Dated, signed and delivered at Iten this 3rd day of February, 2025.
In the presence of:
- Ms. Mnemeka for the Appellant/Applicant.
- Mr. Barmao for the1st Respondent.
- No appearance for the 2nd & 3rd Respondents.
- Court Assistant: Christine