(Being an Appeal from the Ruling of Honourable R. K. Ogolla, RM, at Kwale Law Courts, delivered on 6/11/2024 in Kwale RMCC E042 of 2023)
RULING
1. The application before court by way of Notice of Motion dated 27/11/2024 seeks orders of stay of the ruling/decree dated 6/11/2024 pending hearing and determination of the appeal filed herein, to quash the proclamation and detention of the appellant/applicant’s property and restitute the same to the appellant and that costs of the application be paid by the respondent.
2. There are many grounds set out as supporting the application but which are basically a recitation of the application that was dismissed before the magistrate’s court. The crux of the present application as gathered from the grounds set out and the supporting affidavit sworn on 27/11/2024 by Eric Momanyi, the County Business manager of the applicant are two.
3. First, that the applicant is aggrieved by the decision of the learned magistrate dismissing the applicant’s application for stay of execution and setting aside of the default judgment entered against the applicant for failure to enter appearance and file defence to the respondent’s suit. The resulting default judgment had awarded the respondent a sum of KShs 4,003,108/=damages together with costs and interest for personal injuries sustained by the respondent as a result being electrocuted by high voltage wires that had fallen on the ground due to the negligence attributed to the applicant.
4. Secondly, that upon dismissal of the application for stay, Fantasy Auctioneers who the respondent had earlier instructed to recover the decretal sum, which according to the respondent’s replying affidavit filed herein and sworn on 6/12/2024 had by this date reached KShs 4,457,180/= and who had proclaimed the applicant’s property, moved and attached one of them, motor vehicle registration number KBT 612N. According to the notice of proclamation and attachment dated 16/7/2024 annexed to the applicant’s affidavit, a total of thirteen vehicles, all in good condition and assigned various values ranging from KShs 300,000/= to KShs 900,000/= had been attached. The respondent has refused to have the vehicle released to the applicant who deposes that this is in contempt of the trial court’s orders of 6/11/2024 wherein upon dismissal of the applicant’s application for stay, it granted 30 days’ stay of execution. The applicant deposes further that the continued detention of the vehicle is not only contemptuous of the trial court’s order of temporary stay for 30 days but also is hampering its service delivery and is thus incapable of discharging its mandate to supply electricity to areas that are unreachable and to respond to emergency situations. The applicant deposes further that the respondent has threatened to dispose of the vehicle upon lapse of the 30 days temporary order of stay.
5. The applicant further deposes that it has filed this application timeously after attempts to settle the issue amicably out of court failed and that it is willing to pay any costs incurred by the respondent thus far to secure the immediate release of the attached vehicles.
6. Finally, that the applicant/appellant herein it filed an appeal before this court through the memorandum of appeal dated 13/11/2024 seeking orders that, the ruling delivered on 6/11/2024 in Kwale, PMCC E042of 2023 be set aside and or be vacated and the defendant/applicant’s notice of motion application dated 19/7/2024 be allowed as prayed with costs. Alternatively, this court do take up the matter and re-evaluate the evidence on record, submissions by the parties and/or re-assess the evidence adduced and pronounces it self thereof. That the costs of the appeal be paid by the respondent and that the court may grant any other orders it deems fit.
7. The respondent has strenuously opposed the application through his replying affidavit sworn on 6/12/2024. He has largely deposed to issues that would be addressed in the appeal rather than the present application. Addressing the application, the respondent deposes that the applicant has not shown what substantial loss it will suffer if stay is not granted, that the application is an after-thought having been filed almost one month after the ruling of the magistrates court and that it has not offered any security as required by law.
8. He winds up by deposing that if this court is minded to grant the order of stay then the decretal sum now standing at KShs 4,457,180/= inclusive of costs to be deposited in an interest earning account pending hearing and determination of the appeal.
9. The court directed that the application be disposed of on written submissions which learned counsels for both parties have filed.
10. Learned counsel for the applicant has submitted, citing various authorities that it has demonstrated that it has met the conditions of grant of an order of stay pending appeal.
11. First that the applicant has demonstrated that it stands to suffer substantial loss if the decretal sum is paid over to the applicant because the decretal sum being in excess of KShs 4.2 million is a substantial sum and the respondent has failed to demonstrate any source of income and therefore the ability to refund the money. Learned counsel submits that on this issue, all that the applicant needs to do is to depose that the respondent does not have the means to refund the decretal sum if it is paid over. Further, that once that deposition is made, the evidential burden shifts to the respondent to demonstrate that he has the means to repay the decretal sum once released to him which the respondent herein has failed to do.
12. Second, on the requirement of security learned counsel submits that the applicant has in its supporting affidavit shown its willingness to provide security if the court does so order.
13. Third, learned counsel for the applicant submits that the application was made timeously and without delay.
14. To support these submissions, learned counsel has cited among others the cases of Equity Bank Limited v Taiga Adams Company Limited [2006] KEHC 860 (KLR), Mutiso & another v Ngoma [2021] KEHC 344 (KLR), Stanley Karanja Wainaina & Thermopack Limited v Ridon Anyangu Mutubwa [2016] KEHC 4573 (KLR) and Focin Motorcycle Co. Limited v Ann Wambui Wangui & another [2018] eKLR.
15. Learned counsel for the respondent on his part submits that the ruling of 6/11/2024 having been for dismissal of the applicant’s motion to set aside the default judgment, the same is not capable of being stayed as it did not require any positive steps to be taken by the applicant and for that reason this application should be dismissed. To support his submission on the import of an order of stay, learned counsel has cited the case of Eurofix Royal Industries Limited v El Dad Holdings Limited [2024] KEHC 1892 (KLR) and Co-operative Bank of Kenya Limited v Banking Insurance & Finance Union (Kenya) [2015] KECA 353 (KLR), Kenya Commercial Bank Limited v Tamarind Meadows Limited, Tamarind Properties Ltd, Kennedy Otieno Ogwaro, Joseph Mungai, David Kitawi Ngoda, Wibeso Investments Ltd, John Harun Mwau & Attorney General [2016] KEHC 8610 (KLR).
16. Learned counsel for the applicant did not address himself to this submission. However, whereas it may be that the applicant has taken a long route to head to its intended destination of having the execution of the judgment of the lower court stayed pending the determination of the appeal, I do not think that the application should be dismissed altogether as, if it is found to have merit, it has a purpose to serve.
17. It is true that the applicant would have straightaway filed an application for stay of execution pending appeal of the lower court judgment delivered on 15/5/2024 as this is well provided for under Order 42 Rule 6(1) CPR. However, its application before the lower court dated 19/7/2024 with twin prayers for stay of execution and setting aside of the default judgment having been dismissed, it appealed against that order. In the event the appeal succeeds, it will be both on the issue of stay of execution and the setting aside of the default judgment. It is then apparent that its intent was, in the interim, to seek a stay of execution of the judgment of the lower court pending hearing and determination of the appeal. But in the present application it ended up referring to the application in the lower court instead because that is what the appeal is on. The respondent has appreciated this issue and ably responded to the application as such and I do not find that any prejudice will be occasioned if the same is considered. I do so in consideration of the fact that even if this application is struck out on that technicality, the applicant would still have the chance to file an application for stay of execution of the judgment pending the hearing and determination of the appeal already filed herein. That is a procedural issue that will not only delay the determination of the appeal but cause hardship to both parties and which would be against the spirit of Article 159(2)(d) of the Constitution and the overriding objective of civil litigation as provided under sections 1A and 1B of the Civil Procedure Act (Cap. 21) Laws of Kenya.
18. Learned counsel submits that the applicant has not demonstrated that it will suffer substantial loss if the application for stay is not granted as there is no indication in the supporting affidavit that the respondent will not be able to refund the property if the appeal is successful and the same was only brought out in the submissions. Learned counsel has relied on inter alia the cases of James Wangalwa & Another V Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR), Mary Muthoni v Kenya Nut Company Ltd [2016] KEELRC 616 (KLR).
19. On the issue of security, learned counsel submitted that the applicant had not offered any security in its supporting affidavit but if the court is minded to grant the order of stay then the applicant be order to deposit the entire decretal sum in an interet earning account within a specific period.
20. Learned counsel did not have much to submit about the issue of unreasonable delay even as he said that the application was not filed timeously.
21. I have considered the application, the grounds in support and the opposition thereto as well as the submissions by learned counsels. The point for determination is whether the applicant has satisfied the conditions for grant of stay of execution pending appeal.
22. The respondent has deposed in his replying affidavit that in case the court is minded to grant a stay of execution, then the applicant should be made to deposit a sum of KShs 4,457,180/= in an interest-earning account pending the appeal. On its part, the applicant has not raised any objection to this suggestion by the Respondent. In its grounds supporting the application, it averred that it is willing to pay any costs incurred by the respondent thus far if that is the price to pay to have the stay of execution granted pending the hearing and determination of the appeal. It was not necessary to say that it was a price to pay. Motions are heard and determined on their merits and not because a party has to pay any price for the same.
23. In effect therefore, I find that the Respondent is not in principal opposed to the grant of the order of stay of execution pending hearing and determination of the appeal provided that the applicant provides security as ordered by the court. On his part the applicant is ready to provide any form of security as ordered by the court as per his affidavit in support of the application. Considering these two positions by the parties, it would appear to me that the application can be determined on that narrow ground.
24. Turning back to the merits of the application, the conditions that an applicant has to meet and/or demonstrate for the court to grant a stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules are that:-
a. substantial loss will result to the applicant if stay is not granted; and;
b. security is given by the applicant for the due performance of any decree as may eventually become binding on the applicant upon determination of the appeal; and
c. the application has been brought without unreasonable delay.
25. In the case of RWW v EKW [2019] eKLR the court considering these provisions of the law on stay of execution pending appeal said that:
“The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs. Indeed, to grant or refuse an application for stay of execution pending appeal is discretionary. The Court when granting the stay however, must balance the interests of the Appellant with those of the Respondent.”
26. The Court must therefore have in mind that the respondent has a judgment in his favour and therefore in exercising its discretion on whether or not to grant the order of stay it must balance the rights of the applicant and those of the respondent as was held in the case of Machira t/a Machira & Co Advocates v. East African Standard (NO 2) [2002] KLR 63 that:
“to be obsessed with the protection of an appellant or intending appellant in total disregard or flitting mention of the so far successful opposite party is to flirt with one party as crocodile tears are shed for the other, contrary to sound principle for the exercise of a judicial discretion. The ordinary principle is that a successful party is entitled to the fruits of his judgement or of any decision of the court giving him success at any stage. That is trite knowledge and is one of the fundamental procedural values which is acknowledged and normally must be put into effect by the way applications for stay of further proceedings or execution, pending appeal are handled. In the application of that ordinary principle, the court must have its sight firmly fixed on upholding the overriding objective of the rules of procedure for handling civil cases in courts, which is to do justice in accordance with the law and to prevent abuse of the process of the court.”
27. The ruling against the applicant dismissing its application for stay, which has given rise to the present application was delivered on 6/11/2024 and it filed the present application 27/11/2024 three weeks after. I find that there was no unreasonable delay in filing the application.
28. On the issue of substantial loss, there is evidence that the applicant’s motor vehicle registration number KBT 612N is under attachment and the respondent has indicated its keenness to dispose of it. As deposed by the applicant, there is no doubt that this being an operational vehicle, the applicant is already suffering substantial loss. I am satisfied that this ground is established. In the circumstances, I am satisfied that substantial loss may result if an order of stay is not granted at this time.
29. The Applicant has indicated that it is willing and able to pay the costs incurred by the respondent thus far in order to obtain the orders of stay. That in itself is not commitment to provide security for the due performance of the decree. However, it shows in spirit that the applicant is willing to meet the respondent at some point along the way to resolve the issue. I would find that in order to satisfy that condition the applicant would be required to deposit the decretal sum as suggested by the respondent and to which suggestion the applicant raised no objection.
30. Considering that the respondent has a judgment in his favour, the appropriate security to be provided by the applicant shall be in the form that satisfies that judgment.
31. In the circumstances, I am satisfied that the application for stay of execution dated 27/11/2024 has merit and the same be and is hereby allowed on condition that the applicant deposits in a joint interest earning account the decretal sum together with incidental costs and interest amounting to KShs 4,457,180/= in a joint interest-earning account in the names of counsels for both parties with Kenya Commercial Bank (KCB) within the next 14 days and failure on the part of the applicant to do so, this order of stay will automatically lapse and the respondent will be at liberty to proceed with execution.
32. Costs shall abide by the outcome of the appeal.
33. Orders accordingly.
Written, dated and signed at Kwale this 29th day of January 2025.
ANDAYI W. F.
JUDGE
Delivered on the Virtual platform, Teams this 29th day of January 2025.
In the presence of:
Ms Chege for the Appellant.
Kenzi for the Respondent.
Johnson: Court assistant
RULING
1. The application before court by way of Notice of Motion dated 27/11/2024 seeks orders of stay of the ruling/decree dated 6/11/2024 pending hearing and determination of the appeal filed herein, to quash the proclamation and detention of the appellant/applicant’s property and restitute the same to the appellant and that costs of the application be paid by the respondent.
2. There are many grounds set out as supporting the application but which are basically a recitation of the application that was dismissed before the magistrate’s court. The crux of the present application as gathered from the grounds set out and the supporting affidavit sworn on 27/11/2024 by Eric Momanyi, the County Business manager of the applicant are two.
3. First, that the applicant is aggrieved by the decision of the learned magistrate dismissing the applicant’s application for stay of execution and setting aside of the default judgment entered against the applicant for failure to enter appearance and file defence to the respondent’s suit. The resulting default judgment had awarded the respondent a sum of KShs 4,003,108/=damages together with costs and interest for personal injuries sustained by the respondent as a result being electrocuted by high voltage wires that had fallen on the ground due to the negligence attributed to the applicant.
4. Secondly, that upon dismissal of the application for stay, Fantasy Auctioneers who the respondent had earlier instructed to recover the decretal sum, which according to the respondent’s replying affidavit filed herein and sworn on 6/12/2024 had by this date reached KShs 4,457,180/= and who had proclaimed the applicant’s property, moved and attached one of them, motor vehicle registration number KBT 612N. According to the notice of proclamation and attachment dated 16/7/2024 annexed to the applicant’s affidavit, a total of thirteen vehicles, all in good condition and assigned various values ranging from KShs 300,000/= to KShs 900,000/= had been attached. The respondent has refused to have the vehicle released to the applicant who deposes that this is in contempt of the trial court’s orders of 6/11/2024 wherein upon dismissal of the applicant’s application for stay, it granted 30 days’ stay of execution. The applicant deposes further that the continued detention of the vehicle is not only contemptuous of the trial court’s order of temporary stay for 30 days but also is hampering its service delivery and is thus incapable of discharging its mandate to supply electricity to areas that are unreachable and to respond to emergency situations. The applicant deposes further that the respondent has threatened to dispose of the vehicle upon lapse of the 30 days temporary order of stay.
5. The applicant further deposes that it has filed this application timeously after attempts to settle the issue amicably out of court failed and that it is willing to pay any costs incurred by the respondent thus far to secure the immediate release of the attached vehicles.
6. Finally, that the applicant/appellant herein it filed an appeal before this court through the memorandum of appeal dated 13/11/2024 seeking orders that, the ruling delivered on 6/11/2024 in Kwale, PMCC E042of 2023 be set aside and or be vacated and the defendant/applicant’s notice of motion application dated 19/7/2024 be allowed as prayed with costs. Alternatively, this court do take up the matter and re-evaluate the evidence on record, submissions by the parties and/or re-assess the evidence adduced and pronounces it self thereof. That the costs of the appeal be paid by the respondent and that the court may grant any other orders it deems fit.
7. The respondent has strenuously opposed the application through his replying affidavit sworn on 6/12/2024. He has largely deposed to issues that would be addressed in the appeal rather than the present application. Addressing the application, the respondent deposes that the applicant has not shown what substantial loss it will suffer if stay is not granted, that the application is an after-thought having been filed almost one month after the ruling of the magistrates court and that it has not offered any security as required by law.
8. He winds up by deposing that if this court is minded to grant the order of stay then the decretal sum now standing at KShs 4,457,180/= inclusive of costs to be deposited in an interest earning account pending hearing and determination of the appeal.
9. The court directed that the application be disposed of on written submissions which learned counsels for both parties have filed.
10. Learned counsel for the applicant has submitted, citing various authorities that it has demonstrated that it has met the conditions of grant of an order of stay pending appeal.
11. First that the applicant has demonstrated that it stands to suffer substantial loss if the decretal sum is paid over to the applicant because the decretal sum being in excess of KShs 4.2 million is a substantial sum and the respondent has failed to demonstrate any source of income and therefore the ability to refund the money. Learned counsel submits that on this issue, all that the applicant needs to do is to depose that the respondent does not have the means to refund the decretal sum if it is paid over. Further, that once that deposition is made, the evidential burden shifts to the respondent to demonstrate that he has the means to repay the decretal sum once released to him which the respondent herein has failed to do.
12. Second, on the requirement of security learned counsel submits that the applicant has in its supporting affidavit shown its willingness to provide security if the court does so order.
13. Third, learned counsel for the applicant submits that the application was made timeously and without delay.
14. To support these submissions, learned counsel has cited among others the cases of Equity Bank Limited v Taiga Adams Company Limited [2006] KEHC 860 (KLR), Mutiso & another v Ngoma [2021] KEHC 344 (KLR), Stanley Karanja Wainaina & Thermopack Limited v Ridon Anyangu Mutubwa [2016] KEHC 4573 (KLR) and Focin Motorcycle Co. Limited v Ann Wambui Wangui & another [2018] eKLR.
15. Learned counsel for the respondent on his part submits that the ruling of 6/11/2024 having been for dismissal of the applicant’s motion to set aside the default judgment, the same is not capable of being stayed as it did not require any positive steps to be taken by the applicant and for that reason this application should be dismissed. To support his submission on the import of an order of stay, learned counsel has cited the case of Eurofix Royal Industries Limited v El Dad Holdings Limited [2024] KEHC 1892 (KLR) and Co-operative Bank of Kenya Limited v Banking Insurance & Finance Union (Kenya) [2015] KECA 353 (KLR), Kenya Commercial Bank Limited v Tamarind Meadows Limited, Tamarind Properties Ltd, Kennedy Otieno Ogwaro, Joseph Mungai, David Kitawi Ngoda, Wibeso Investments Ltd, John Harun Mwau & Attorney General [2016] KEHC 8610 (KLR).
16. Learned counsel for the applicant did not address himself to this submission. However, whereas it may be that the applicant has taken a long route to head to its intended destination of having the execution of the judgment of the lower court stayed pending the determination of the appeal, I do not think that the application should be dismissed altogether as, if it is found to have merit, it has a purpose to serve.
17. It is true that the applicant would have straightaway filed an application for stay of execution pending appeal of the lower court judgment delivered on 15/5/2024 as this is well provided for under Order 42 Rule 6(1) CPR. However, its application before the lower court dated 19/7/2024 with twin prayers for stay of execution and setting aside of the default judgment having been dismissed, it appealed against that order. In the event the appeal succeeds, it will be both on the issue of stay of execution and the setting aside of the default judgment. It is then apparent that its intent was, in the interim, to seek a stay of execution of the judgment of the lower court pending hearing and determination of the appeal. But in the present application it ended up referring to the application in the lower court instead because that is what the appeal is on. The respondent has appreciated this issue and ably responded to the application as such and I do not find that any prejudice will be occasioned if the same is considered. I do so in consideration of the fact that even if this application is struck out on that technicality, the applicant would still have the chance to file an application for stay of execution of the judgment pending the hearing and determination of the appeal already filed herein. That is a procedural issue that will not only delay the determination of the appeal but cause hardship to both parties and which would be against the spirit of Article 159(2)(d) of the Constitution and the overriding objective of civil litigation as provided under sections 1A and 1B of the Civil Procedure Act (Cap. 21) Laws of Kenya.
18. Learned counsel submits that the applicant has not demonstrated that it will suffer substantial loss if the application for stay is not granted as there is no indication in the supporting affidavit that the respondent will not be able to refund the property if the appeal is successful and the same was only brought out in the submissions. Learned counsel has relied on inter alia the cases of James Wangalwa & Another V Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR), Mary Muthoni v Kenya Nut Company Ltd [2016] KEELRC 616 (KLR).
19. On the issue of security, learned counsel submitted that the applicant had not offered any security in its supporting affidavit but if the court is minded to grant the order of stay then the applicant be order to deposit the entire decretal sum in an interet earning account within a specific period.
20. Learned counsel did not have much to submit about the issue of unreasonable delay even as he said that the application was not filed timeously.
21. I have considered the application, the grounds in support and the opposition thereto as well as the submissions by learned counsels. The point for determination is whether the applicant has satisfied the conditions for grant of stay of execution pending appeal.
22. The respondent has deposed in his replying affidavit that in case the court is minded to grant a stay of execution, then the applicant should be made to deposit a sum of KShs 4,457,180/= in an interest-earning account pending the appeal. On its part, the applicant has not raised any objection to this suggestion by the Respondent. In its grounds supporting the application, it averred that it is willing to pay any costs incurred by the respondent thus far if that is the price to pay to have the stay of execution granted pending the hearing and determination of the appeal. It was not necessary to say that it was a price to pay. Motions are heard and determined on their merits and not because a party has to pay any price for the same.
23. In effect therefore, I find that the Respondent is not in principal opposed to the grant of the order of stay of execution pending hearing and determination of the appeal provided that the applicant provides security as ordered by the court. On his part the applicant is ready to provide any form of security as ordered by the court as per his affidavit in support of the application. Considering these two positions by the parties, it would appear to me that the application can be determined on that narrow ground.
24. Turning back to the merits of the application, the conditions that an applicant has to meet and/or demonstrate for the court to grant a stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules are that:-
a. substantial loss will result to the applicant if stay is not granted; and;
b. security is given by the applicant for the due performance of any decree as may eventually become binding on the applicant upon determination of the appeal; and
c. the application has been brought without unreasonable delay.
25. In the case of RWW v EKW [2019] eKLR the court considering these provisions of the law on stay of execution pending appeal said that:
“The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs. Indeed, to grant or refuse an application for stay of execution pending appeal is discretionary. The Court when granting the stay however, must balance the interests of the Appellant with those of the Respondent.”
26. The Court must therefore have in mind that the respondent has a judgment in his favour and therefore in exercising its discretion on whether or not to grant the order of stay it must balance the rights of the applicant and those of the respondent as was held in the case of Machira t/a Machira & Co Advocates v. East African Standard (NO 2) [2002] KLR 63 that:
“to be obsessed with the protection of an appellant or intending appellant in total disregard or flitting mention of the so far successful opposite party is to flirt with one party as crocodile tears are shed for the other, contrary to sound principle for the exercise of a judicial discretion. The ordinary principle is that a successful party is entitled to the fruits of his judgement or of any decision of the court giving him success at any stage. That is trite knowledge and is one of the fundamental procedural values which is acknowledged and normally must be put into effect by the way applications for stay of further proceedings or execution, pending appeal are handled. In the application of that ordinary principle, the court must have its sight firmly fixed on upholding the overriding objective of the rules of procedure for handling civil cases in courts, which is to do justice in accordance with the law and to prevent abuse of the process of the court.”
27. The ruling against the applicant dismissing its application for stay, which has given rise to the present application was delivered on 6/11/2024 and it filed the present application 27/11/2024 three weeks after. I find that there was no unreasonable delay in filing the application.
28. On the issue of substantial loss, there is evidence that the applicant’s motor vehicle registration number KBT 612N is under attachment and the respondent has indicated its keenness to dispose of it. As deposed by the applicant, there is no doubt that this being an operational vehicle, the applicant is already suffering substantial loss. I am satisfied that this ground is established. In the circumstances, I am satisfied that substantial loss may result if an order of stay is not granted at this time.
29. The Applicant has indicated that it is willing and able to pay the costs incurred by the respondent thus far in order to obtain the orders of stay. That in itself is not commitment to provide security for the due performance of the decree. However, it shows in spirit that the applicant is willing to meet the respondent at some point along the way to resolve the issue. I would find that in order to satisfy that condition the applicant would be required to deposit the decretal sum as suggested by the respondent and to which suggestion the applicant raised no objection.
30. Considering that the respondent has a judgment in his favour, the appropriate security to be provided by the applicant shall be in the form that satisfies that judgment.
31. In the circumstances, I am satisfied that the application for stay of execution dated 27/11/2024 has merit and the same be and is hereby allowed on condition that the applicant deposits in a joint interest earning account the decretal sum together with incidental costs and interest amounting to KShs 4,457,180/= in a joint interest-earning account in the names of counsels for both parties with Kenya Commercial Bank (KCB) within the next 14 days and failure on the part of the applicant to do so, this order of stay will automatically lapse and the respondent will be at liberty to proceed with execution.
32. Costs shall abide by the outcome of the appeal.
33. Orders accordingly.
Written, dated and signed at Kwale this 29th day of January 2025.
ANDAYI W. F.
JUDGE
Delivered on the Virtual platform, Teams this 29th day of January 2025.
In the presence of:
Ms Chege for the Appellant.
Kenzi for the Respondent.
Johnson: Court assistant