RULING
1. This ruling is in respect of the applicant’s notice of motion application dated 13th November 2024. Through the application, the applicant seeks:-
i. Spent
ii. Leave to file an appeal out of time against the Judgment delivered by Hon. Caroline R.T Ateya PM on 30th September 2024 in Kabarnet CMC’s ELC Case No.E014 of 2022.
iii. Stay of execution of the Decree issued in respect of the Judgment of Hon. Caroline R.T Ateya PM delivered on 30th September 2024 in Kabarnet CMC’s ELC Case No.E014 of 2022.
iv. Costs of the application.
2. The application is premised on the grounds that the Judgment was delivered in the absence of the applicant and his counsel; that the applicant was dissatisfied with the Judgment and is desirous of appealing against the Judgment; that by the time the applicant learnt about the Judgment, the time within which he ought to have appealed against the Judgment had lapsed and that unless stay of execution of the Judgment and the Decree issued in respect thereof is granted, the applicant may suffer great loss and damage.
3. The application is supported by the affidavit of the applicant sworn on 13th November 2024 on which the grounds on the face of the application are reiterated. Besides reiterating the grounds on the face of the application, the applicant has annexed the following documents to the application:-
i. Copy of the Decree issued in Karbanet CMC ELC Case No.E014/2022;
ii. Copy of a letter from the applicant’s advocate to the lower court dated 7th November 2024 requesting for certified copy of Judgment and court proceedings;
iii. Copy of a letter from the applicant’s advocate to the applicant dated 7th November, 2024 advising the applicant on the outcome of the case at the lower court.
iv. Draft Memorandum of Appeal dated 13th November 2024.
4. The application is unopposed.
5. On 16th December 2024 when the application came up for hearing, counsel for the applicant urged the court to allow the application as it is unopposed.
Analysis and determination
6. I have considered the reasons given by the applicant for delay in filing the intended appeal, namely that the Judgment sought to be appealed from was delivered in the absence of the applicant and his advocate as they were not served with notice of delivery of the Judgment. That averment has not been controverted by the respondents. The delay in filing the application is also not in ordinate as the application was filed barely two weeks after the time within which the applicant ought to have appealed against the Judgment had lapsed. I am satisfied that the applicant has made up a case for being granted leave to appeal against the judgment and decree of the lower court out of time.
7. As to whether the applicant has made up a case for being granted stay of execution of the judgment and decree of the lower court, the onus was on the applicant to satisfy the conditions set out in Order 42 Rule 6(1) of the Civil Procedure Rules. In that regard, see the case of Antoine Ndiaye v African Virtual University [2015] eKLR where it was held:-
“The relief of stay of execution pending appeal is governed by Order 42 Rule 6 of the Civil Procedure Rules. The relief is discretionary although, as it has been said often, the discretion must be exercised judicially, that is to say, judiciously and upon defined principles of law; not capriciously or whimsically. Therefore, a stay of execution should only be granted where sufficient cause has been shown by the Applicant. And in determining whether sufficient cause has been shown, the court should be guided by the three prerequisites provided under Order 42 Rule 6 of the Civil Procedure Rules, these are; (a) the application is brought without undue delay; (b.)The court is satisfied that substantial loss may result to the Applicant unless stay of execution is ordered; and (c.) 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.”
8. As to whether the applicant has discharged the burden placed on him of satisfying the court that unless stay of execution is granted, he stands to suffer substantial loss, I note that in the affidavit sworn in support of the application, the applicant has merely deponed that unless stay of execution of the judgment and the decree is granted, he stands to suffer great loss and damage. He has not demonstrated what loss and damage, if any, he stands to suffer.
9. Because the applicant has not demonstrated what loss and/or damage, if any, he stands to suffer if stay of execution is not granted and considering that he has not offered or expressed willingness to furnish security for due performance of such Decree or Order as may ultimately be binding on him, I find and hold that the applicant has not made up a case for being granted an order of stay of the Judgment or Decree appealed from. Consequently, I decline to grant him stay pending appeal.
10. The upshot of the foregoing is that the application succeeds to the extent that the applicant is granted leave to file an appeal against the Judgment/Decree of the lower court out of time.
11. Orders accordingly.
Dated, signed and delivered Virtually this 21st day of January, 2025.
In the presence of:
- Mr. Chepngoswo holding brief for Mr. Mwaita for the applicant.
- No appearance for the Respondent.