1. The applicant herein vide a notice of motion dated 11.6.2021 brought under order 51 ,rule 1 of the civil procedure rules , sections 1a 1b and 3a of the civil procedure act , section 159 of the constitution of Kenya 2010 and all other provisions of law seeks the following orders that;
2. The money deposited in account 085000092808 with family bank Eldoret branch in the joint names of khan and associates and Nyachiro Nyagaka and company advocates together with accrued interest be released to the firm of Khan and Associates to offset the decretal sum , accrued interests and costs herein.
a. Upon release of the money as in 1 above any deficit thereof be paid by the appellant.
b. Cost of this application be born by the appellant.
c. Such further or other orders be made as the court may deem fit and expedient.
3. This application is based on the grounds that;
a. The trial court delivered its judgement on the 27th march 2019 awarding the respondent a sum of kshs 550000, together with costs of the suit and interests at court rates.
b. This suit was a test suit and judgement herein was to apply on 25 other matters forming part of the same series thus the total decretal sum without costs was 14,300,000.
c. Upon lodging the appeal herein the appellant was ordered to deposit the entire decretal sum for all the 26 matters totalling to Kshs 14,300,000 into a joint interest earning account in the names of the advocates for the parties herein and an account number 085000092808 was opened with family bank limited branch as ordered by the court
d. This court entered its judgement on the 22.7.202 dismissing the appeal with costs to the 1st respondent .
e. The appellants advocates have however benne adamant to sign a consent for the money deposited in the joint account to be released to the 1st respondent and 25 others despite several requests from the 1st respondents advocate stating that there is an appeal pending yet it only lodged a notice of appeal.
f. Refusal to sign the necessary documents for the money to be released to the 1st respondents and 25 others has occasioned prejudice who have been battling justice for twelve years .
g. Since the filing of this suit has been necessitated by refusal ,failure and or neglect on the part of the appellant the same should be ordered to bear the cost of this application.
4. An affidavit was also filed in support of this application which was sworn by one Miss Irene Kusa an Advocate of the High court of Kenya practicing in the firm of Khan and Associates deponing on the appellant has denied them justice.
5. The respondent filed a replying affidavit sworn by Esther Osoro the head of legal and regulatory affairs of the respondent stated that the trial court delivered a judgement in favour of the plaintiff together with costs ,also that the respondent being dissatisfied he appealed .She told this court that indeed the decretal sum deposited into a joint account, the appeal was heard and dismissed with costs , the respondent further appealed to the Court of Appeal , the respondent further applied for stay of execution in this court which application was heard and determined same was also dismissed, Also that the respondent has filed the application for stay of execution in the Court of Appeal which has not been heard pending hearing and determination of the appeal . They further argued that this application is meant to circumvent the appeal and application for the stay before court of appeal, he further contends that this court is functus officio and that the application be dismissed with costs.
6. The applicants , through their advocate filed a response to the replying affidavit if the respondent saying that the application for stay was dismissed wayback in 2021 and that by the time of application the respondent had already filed for an appeal , the respondent did not move to stay orders of execution in the Court of Appeal neither did they respond to instant application until the 1st Respondent moved this court to hear and determine the application. Also that application for stay was meant to scuttle the proceedings herein and was taken after the parties had taken directions on the hearing of this application.
7. Applicants submissions, he reiterated on the need for the grant of orders he sought in his application in order to enjoy the fruits of the judgement delivered on his favour.
ISSUE OF DETERMINATION
.8. Having considered the application, the response thereto, and the submission of the parties , the annextures , the issues of determination is ;
a. Whether the application before me is deserving of the orders sought.
ANALYSIS
9. .Stay of Execution is provided under Order 42 Rule 6 of the Civil Procedure Rules 2010 as follows;
a. “(1)
b. No appeal or second appeal shall operate as a stay of execution or proceeding 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.
c. (2)No order for stay of execution shall be made under subrule (1) unless –
d. (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
e. (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.”
f. Bearing this precedent in mind , and as the court clearly stated , I have no reasons to deny the decree holder the fruits of the judgement.
10.. In Kenya, once an application for a stay of execution of a decree is filed in the Court of Appeal, the High Court cannot prevent the decree holder from executing the decree, unless the Court of Appeal orders otherwise. The Court of Appeal, when hearing an application for stay, will consider whether substantial loss may result to the applicant if the stay is not granted and whether the applicant has provided sufficient security for the due performance of the decree. If the Court of Appeal grants a stay, it may impose conditions, such as requiring security.
11.The applicant herein decries that he has been denied the fruits of justice for a long time and so made the application to this court for an order of execution. The fact that an appeal is pending does not confer and automatic right of stay of execution .There is no evidence that the respondent has orders for stay of execution from the Court of Appeal .
12. I therefore find no reason to deny the orders sought ad the applicant has a right to enjoy the fruits of the judgment. .I find merit in the application dated 11.6.2021 and I allow it as prayed . Costs to the Applicant .
T.A ODERA
JUDGE
23.6.25
Delivered Virtually Via Teams Platform in the presence of :
N/A for Applicant
N/A for Respondent
CA Kipchirchir..
2. The money deposited in account 085000092808 with family bank Eldoret branch in the joint names of khan and associates and Nyachiro Nyagaka and company advocates together with accrued interest be released to the firm of Khan and Associates to offset the decretal sum , accrued interests and costs herein.
a. Upon release of the money as in 1 above any deficit thereof be paid by the appellant.
b. Cost of this application be born by the appellant.
c. Such further or other orders be made as the court may deem fit and expedient.
3. This application is based on the grounds that;
a. The trial court delivered its judgement on the 27th march 2019 awarding the respondent a sum of kshs 550000, together with costs of the suit and interests at court rates.
b. This suit was a test suit and judgement herein was to apply on 25 other matters forming part of the same series thus the total decretal sum without costs was 14,300,000.
c. Upon lodging the appeal herein the appellant was ordered to deposit the entire decretal sum for all the 26 matters totalling to Kshs 14,300,000 into a joint interest earning account in the names of the advocates for the parties herein and an account number 085000092808 was opened with family bank limited branch as ordered by the court
d. This court entered its judgement on the 22.7.202 dismissing the appeal with costs to the 1st respondent .
e. The appellants advocates have however benne adamant to sign a consent for the money deposited in the joint account to be released to the 1st respondent and 25 others despite several requests from the 1st respondents advocate stating that there is an appeal pending yet it only lodged a notice of appeal.
f. Refusal to sign the necessary documents for the money to be released to the 1st respondents and 25 others has occasioned prejudice who have been battling justice for twelve years .
g. Since the filing of this suit has been necessitated by refusal ,failure and or neglect on the part of the appellant the same should be ordered to bear the cost of this application.
4. An affidavit was also filed in support of this application which was sworn by one Miss Irene Kusa an Advocate of the High court of Kenya practicing in the firm of Khan and Associates deponing on the appellant has denied them justice.
5. The respondent filed a replying affidavit sworn by Esther Osoro the head of legal and regulatory affairs of the respondent stated that the trial court delivered a judgement in favour of the plaintiff together with costs ,also that the respondent being dissatisfied he appealed .She told this court that indeed the decretal sum deposited into a joint account, the appeal was heard and dismissed with costs , the respondent further appealed to the Court of Appeal , the respondent further applied for stay of execution in this court which application was heard and determined same was also dismissed, Also that the respondent has filed the application for stay of execution in the Court of Appeal which has not been heard pending hearing and determination of the appeal . They further argued that this application is meant to circumvent the appeal and application for the stay before court of appeal, he further contends that this court is functus officio and that the application be dismissed with costs.
6. The applicants , through their advocate filed a response to the replying affidavit if the respondent saying that the application for stay was dismissed wayback in 2021 and that by the time of application the respondent had already filed for an appeal , the respondent did not move to stay orders of execution in the Court of Appeal neither did they respond to instant application until the 1st Respondent moved this court to hear and determine the application. Also that application for stay was meant to scuttle the proceedings herein and was taken after the parties had taken directions on the hearing of this application.
7. Applicants submissions, he reiterated on the need for the grant of orders he sought in his application in order to enjoy the fruits of the judgement delivered on his favour.
ISSUE OF DETERMINATION
.8. Having considered the application, the response thereto, and the submission of the parties , the annextures , the issues of determination is ;
a. Whether the application before me is deserving of the orders sought.
ANALYSIS
9. .Stay of Execution is provided under Order 42 Rule 6 of the Civil Procedure Rules 2010 as follows;
a. “(1)
b. No appeal or second appeal shall operate as a stay of execution or proceeding 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.
c. (2)No order for stay of execution shall be made under subrule (1) unless –
d. (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
e. (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.”
f. Bearing this precedent in mind , and as the court clearly stated , I have no reasons to deny the decree holder the fruits of the judgement.
10.. In Kenya, once an application for a stay of execution of a decree is filed in the Court of Appeal, the High Court cannot prevent the decree holder from executing the decree, unless the Court of Appeal orders otherwise. The Court of Appeal, when hearing an application for stay, will consider whether substantial loss may result to the applicant if the stay is not granted and whether the applicant has provided sufficient security for the due performance of the decree. If the Court of Appeal grants a stay, it may impose conditions, such as requiring security.
11.The applicant herein decries that he has been denied the fruits of justice for a long time and so made the application to this court for an order of execution. The fact that an appeal is pending does not confer and automatic right of stay of execution .There is no evidence that the respondent has orders for stay of execution from the Court of Appeal .
12. I therefore find no reason to deny the orders sought ad the applicant has a right to enjoy the fruits of the judgment. .I find merit in the application dated 11.6.2021 and I allow it as prayed . Costs to the Applicant .
T.A ODERA
JUDGE
23.6.25
Delivered Virtually Via Teams Platform in the presence of :
N/A for Applicant
N/A for Respondent
CA Kipchirchir..