The Appellant by her Notice of Motion dated 26.01.2023 seeks to stay execution of the judgment of the Small Claims Court dated 29.12.2023. In the judgment, the Appellant was ordered to pay to the 1st Respondent Kshs. 600,000.00. She was also ordered to release Motor Vehicle No. KCG 828X (“the Motor Vehicle”) to the 2nd Respondent. The 2nd Respondent was ordered to refund Kshs. 130,000.00 to the 1st Respondent.
Before the Small Claims Court, the Appellant admitted that she and her husband, the 2nd Respondent herein, sold the Motor Vehicle to the 1st Respondent. She stated that the 1st Respondent made payment but the 2nd Respondent frustrated its transfer causing the 1st Respondent to file suit seeking refund of the money she had paid to the Appellant and the 2nd Respondent. On his part, the 2nd Respondent denied selling the Motor Vehicle to the 1st Respondent. He also denied receiving Kshs. 600,000.00. He filed a counterclaim seeking, inter alia, possession of the Motor Vehicle.
The Adjudicator held that there was no sale agreement as the 2nd Respondent was the registered owner of the Motor Vehicle did not consent to the sale and did not receive the Kshs. 600,000.00 which the 1st Respondent paid to the Appellant. The Adjudicator therefore ordered the Appellant to return the Motor Vehicle and refund the money she had received.
I have considered the application for stay of execution, the depositions in support and in opposition to the application and the brief submissions by counsel on record. The principles upon which the court exercises the jurisdiction to stay execution are not in dispute. Under Order 46 rule 6 of the Civil Procedure Rules, a party seeking the grant of an order of stay of execution pending appeal must show sufficient cause, demonstrate that he will suffer substantial loss unless the order of stay is granted, offer security and move the Court without unreasonable delay. I would add that since this a discretionary remedy, the court is entitled to consider the conduct of the parties and determine whether it is equitable to issue the order (see Butt v Rent Restriction Tribunal [1982] KLR 417).
The Respondents contend that part of the decree has already been executed as they have complied with it. The 1st Respondent states that she has returned the Motor Vehicle logbook to the 2nd Respondent while the 2nd Respondent has refunded the 1st Respondent Kshs. 130,000.00 as ordered by the court. The 1st Respondent has no objection to the decretal sum being secured by way of deposit in court. As regards the Motor Vehicle, I hold that that the Appellant would not suffer substantial loss as the Motor Vehicle is registered in the name of the 2nd Respondent. The Appellant did not assert ownership by way of making a formal claim before the court hence even if the appeal succeeds, she would not be entitled to it.
I therefore allow the Notice of Motion dated 25.01.2014 on the following terms:
(a) A Stay of execution be and is hereby issued pending the hearing and determination of this appeal on condition that the Appellant shall deposit Kshs. 600,000.00 in court within 45 days from the date hereof.
(b) The order of stay of execution shall not apply to Motor Vehicle registration No. KCG 828X.
(c) The Appellant shall pay costs of the application.
DATED and DELIVERED at NAIROBI this 16th day of FEBRUARY 2024
D. S. MAJANJA
JUDGE
Before the Small Claims Court, the Appellant admitted that she and her husband, the 2nd Respondent herein, sold the Motor Vehicle to the 1st Respondent. She stated that the 1st Respondent made payment but the 2nd Respondent frustrated its transfer causing the 1st Respondent to file suit seeking refund of the money she had paid to the Appellant and the 2nd Respondent. On his part, the 2nd Respondent denied selling the Motor Vehicle to the 1st Respondent. He also denied receiving Kshs. 600,000.00. He filed a counterclaim seeking, inter alia, possession of the Motor Vehicle.
The Adjudicator held that there was no sale agreement as the 2nd Respondent was the registered owner of the Motor Vehicle did not consent to the sale and did not receive the Kshs. 600,000.00 which the 1st Respondent paid to the Appellant. The Adjudicator therefore ordered the Appellant to return the Motor Vehicle and refund the money she had received.
I have considered the application for stay of execution, the depositions in support and in opposition to the application and the brief submissions by counsel on record. The principles upon which the court exercises the jurisdiction to stay execution are not in dispute. Under Order 46 rule 6 of the Civil Procedure Rules, a party seeking the grant of an order of stay of execution pending appeal must show sufficient cause, demonstrate that he will suffer substantial loss unless the order of stay is granted, offer security and move the Court without unreasonable delay. I would add that since this a discretionary remedy, the court is entitled to consider the conduct of the parties and determine whether it is equitable to issue the order (see Butt v Rent Restriction Tribunal [1982] KLR 417).
The Respondents contend that part of the decree has already been executed as they have complied with it. The 1st Respondent states that she has returned the Motor Vehicle logbook to the 2nd Respondent while the 2nd Respondent has refunded the 1st Respondent Kshs. 130,000.00 as ordered by the court. The 1st Respondent has no objection to the decretal sum being secured by way of deposit in court. As regards the Motor Vehicle, I hold that that the Appellant would not suffer substantial loss as the Motor Vehicle is registered in the name of the 2nd Respondent. The Appellant did not assert ownership by way of making a formal claim before the court hence even if the appeal succeeds, she would not be entitled to it.
I therefore allow the Notice of Motion dated 25.01.2014 on the following terms:
(a) A Stay of execution be and is hereby issued pending the hearing and determination of this appeal on condition that the Appellant shall deposit Kshs. 600,000.00 in court within 45 days from the date hereof.
(b) The order of stay of execution shall not apply to Motor Vehicle registration No. KCG 828X.
(c) The Appellant shall pay costs of the application.
DATED and DELIVERED at NAIROBI this 16th day of FEBRUARY 2024
D. S. MAJANJA
JUDGE