' This ruling is in respect to the Application dated 19 th March 2025 wherein the Applicant seeks the following orders: -
SPENT
SPENT
THAT this Honourable Court be pleased to grant temporal stay of execution of Judgment, Costs and Interests in Nyamira CMCC 1A of 2022, pending hearing of the Application inter partes.
THAT the Honourable Court be pleased to grant a stay of execution of the Judgment delivered on 23 rd December 2024, Decree, and Assessment of costs in Nyamira CMCC No. 1A of 2022 pending the lodgement, hearing and determination of this Appeal.
THAT upon grant of the prayers in 2,3, 4 and 5 above (sic), this Honourable Court be pleased to order that as security of the Appeal, the Applicant’s Insurer to deposit Kshs. 2,795,550/= in a joint interest earning account.
THAT the costs of the Application be provided for.
The Application is supported by the Applicant’s affidavit which he avers that the 30 days stay of execution he was granted upon the delivery of judgment on 23 rd December 2024 has now lapsed. He further states that he is aggrieved by the said judgment and has since filed a Memorandum of Appeal in Nyamira HCCA E001 of 2025.
The Applicant is apprehensive that his movable properties are presently exposed to execution by way of proclamation and attachment, an eventuality that may render his appeal nugatory. He avers that he stands to suffer irreparable loss and damage if the orders sought are not granted and that his Insurer, M/S Directline Assurance Company Ltd , is ready and willing to furnish security as may be ordered by the Court.
The Applicant contends that the Respondent is a person of straw whose financial capabilities are known and will be unable to refund the decretal sum should the appeal be successful. He states that the Application has been brought timeously and that the said prayers will not occasion any prejudice to the Respondent who may be compensated by way of costs.
The Respondent opposed the Application through the Replying Affidavit dated 8 th April 2025 in which she avers that the Application has been brought in bad faith and is intended to deny her the fruits of her judgment. She further states that the Application does not meet the threshold for grant of orders of stay of execution and adds that it will just if the decretal amount is paid to her considering that the case has been pending in court since 2021.
The Application was canvassed by way of written submissions which I have considered. The main issue for determination is whether the Applicant has made out a case for the granting of orders for stay of execution pending appeal.
Order 42 rule 6(2) of the Civil Procedure Rules (CPR)which provides:
6. 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.
A party seeking orders for stay of execution pending appeal must satisfy the following parameters: -
That there will be substantial loss unless the prayers are granted;
That they have furnished security for the decretal sum; and
That their application is filed timeously.
It is trite that an Application for stay of execution pending appeal calls for the court to exercise its discretion. This discretion is however not to be exercised in whimsical manner. In the oft-cited case of Butt vs. Rent Restriction Tribunal [1982] KLR 417 the Court of Appeal held thus: -
“1. The power of the court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.
2. 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 that appeal court reverse the judge’s discretion.
3. 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.
4. The court in exercising its discretion whether to grant [or] refuse an application for stay will consider the special circumstances of the case and unique requirements. The special circumstances in this case were that there was a large amount of rent in dispute and the appellant had an undoubted right of appeal.
5. 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 for costs as ordered will cause the order for stay of execution to lapse.”
In the instant case, the Applicant argued that he stands to suffer substantial loss as the Respondent is a person of straw who will be unable to refund the decretal sum should the appeal eventually succeed. In James Wangalwa & Another vs. Agnes Naliaka Cheseto [2012] eKLR , it was held thus: -
“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.”
I note that the Respondent did not rebut the Applicant’s claim that she is not a person of means. In National Industrial Credit Bank Limited vs. Aquinas Francis Wasike & Another, Nairobi Civil Application No. 238 of 2005 (UR) where it was held that:-
“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 of them. 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.”
I find that the Applicant has demonstrated that he will suffer substantial loss thus meeting the first condition under Order 42 Rule 6 of the CPR.
On whether the Application was brought in a timeous manner, I note that judgment was delivered before the trial court on 23 rd December 2024. The Memorandum of Appeal annexed to the Application was filed on 21 st January 2025 and the instant appeal filed on 19 th March 2025. I find that there was no delay in the filing of the Application.
On security, I note that the Applicant submitted that his insurer is ready to furnish security in the form of a bank guarantee. I however note that no material was presented to show that the insurer is willing to make such an undertaking. The Court is cognizant of the fact that security must be sufficient in securing the due performance of a decree and that it must balance between the interests of a successful litigant to the fruits of his judgment against the right of an appellant to pursue his or her appeal. In performing this balancing act, I find that that the Respondent’s proposal that half of the decretal sum be paid to her and the other one deposited into a joint interest earning account pending the determination of the appeal is reasonable.
Consequently, I allow the instant application in the following terms: -
That there will be a stay of execution pending the hearing and determination of the appeal.
That the Applicant shall pay the Respondent half of the decretal sum being Kshs. 125,000/=.
The other half of the decretal sum shall be deposited in a joint interest earning account to be held in the names of counsel for both parties.
The Applicant shall comply with the orders in (ii) and (iii) above within 30 days from the date of this Ruling.
The Respondent shall be at liberty to proceed with the process of execution of the decretal sum in the event of the Applicant fails to comply with the orders above.
The costs of the Application shall abide the outcome of the Appeal.
Orders accordingly.
'
SPENT
SPENT
THAT this Honourable Court be pleased to grant temporal stay of execution of Judgment, Costs and Interests in Nyamira CMCC 1A of 2022, pending hearing of the Application inter partes.
THAT the Honourable Court be pleased to grant a stay of execution of the Judgment delivered on 23 rd December 2024, Decree, and Assessment of costs in Nyamira CMCC No. 1A of 2022 pending the lodgement, hearing and determination of this Appeal.
THAT upon grant of the prayers in 2,3, 4 and 5 above (sic), this Honourable Court be pleased to order that as security of the Appeal, the Applicant’s Insurer to deposit Kshs. 2,795,550/= in a joint interest earning account.
THAT the costs of the Application be provided for.
The Application is supported by the Applicant’s affidavit which he avers that the 30 days stay of execution he was granted upon the delivery of judgment on 23 rd December 2024 has now lapsed. He further states that he is aggrieved by the said judgment and has since filed a Memorandum of Appeal in Nyamira HCCA E001 of 2025.
The Applicant is apprehensive that his movable properties are presently exposed to execution by way of proclamation and attachment, an eventuality that may render his appeal nugatory. He avers that he stands to suffer irreparable loss and damage if the orders sought are not granted and that his Insurer, M/S Directline Assurance Company Ltd , is ready and willing to furnish security as may be ordered by the Court.
The Applicant contends that the Respondent is a person of straw whose financial capabilities are known and will be unable to refund the decretal sum should the appeal be successful. He states that the Application has been brought timeously and that the said prayers will not occasion any prejudice to the Respondent who may be compensated by way of costs.
The Respondent opposed the Application through the Replying Affidavit dated 8 th April 2025 in which she avers that the Application has been brought in bad faith and is intended to deny her the fruits of her judgment. She further states that the Application does not meet the threshold for grant of orders of stay of execution and adds that it will just if the decretal amount is paid to her considering that the case has been pending in court since 2021.
The Application was canvassed by way of written submissions which I have considered. The main issue for determination is whether the Applicant has made out a case for the granting of orders for stay of execution pending appeal.
Order 42 rule 6(2) of the Civil Procedure Rules (CPR)which provides:
6. 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.
A party seeking orders for stay of execution pending appeal must satisfy the following parameters: -
That there will be substantial loss unless the prayers are granted;
That they have furnished security for the decretal sum; and
That their application is filed timeously.
It is trite that an Application for stay of execution pending appeal calls for the court to exercise its discretion. This discretion is however not to be exercised in whimsical manner. In the oft-cited case of Butt vs. Rent Restriction Tribunal [1982] KLR 417 the Court of Appeal held thus: -
“1. The power of the court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.
2. 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 that appeal court reverse the judge’s discretion.
3. 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.
4. The court in exercising its discretion whether to grant [or] refuse an application for stay will consider the special circumstances of the case and unique requirements. The special circumstances in this case were that there was a large amount of rent in dispute and the appellant had an undoubted right of appeal.
5. 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 for costs as ordered will cause the order for stay of execution to lapse.”
In the instant case, the Applicant argued that he stands to suffer substantial loss as the Respondent is a person of straw who will be unable to refund the decretal sum should the appeal eventually succeed. In James Wangalwa & Another vs. Agnes Naliaka Cheseto [2012] eKLR , it was held thus: -
“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.”
I note that the Respondent did not rebut the Applicant’s claim that she is not a person of means. In National Industrial Credit Bank Limited vs. Aquinas Francis Wasike & Another, Nairobi Civil Application No. 238 of 2005 (UR) where it was held that:-
“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 of them. 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.”
I find that the Applicant has demonstrated that he will suffer substantial loss thus meeting the first condition under Order 42 Rule 6 of the CPR.
On whether the Application was brought in a timeous manner, I note that judgment was delivered before the trial court on 23 rd December 2024. The Memorandum of Appeal annexed to the Application was filed on 21 st January 2025 and the instant appeal filed on 19 th March 2025. I find that there was no delay in the filing of the Application.
On security, I note that the Applicant submitted that his insurer is ready to furnish security in the form of a bank guarantee. I however note that no material was presented to show that the insurer is willing to make such an undertaking. The Court is cognizant of the fact that security must be sufficient in securing the due performance of a decree and that it must balance between the interests of a successful litigant to the fruits of his judgment against the right of an appellant to pursue his or her appeal. In performing this balancing act, I find that that the Respondent’s proposal that half of the decretal sum be paid to her and the other one deposited into a joint interest earning account pending the determination of the appeal is reasonable.
Consequently, I allow the instant application in the following terms: -
That there will be a stay of execution pending the hearing and determination of the appeal.
That the Applicant shall pay the Respondent half of the decretal sum being Kshs. 125,000/=.
The other half of the decretal sum shall be deposited in a joint interest earning account to be held in the names of counsel for both parties.
The Applicant shall comply with the orders in (ii) and (iii) above within 30 days from the date of this Ruling.
The Respondent shall be at liberty to proceed with the process of execution of the decretal sum in the event of the Applicant fails to comply with the orders above.
The costs of the Application shall abide the outcome of the Appeal.
Orders accordingly.
'