1. The Applicant filed application dated 15th August,2023 seeking for orders of stay of execution of judgement delivered on 20th July,2023 in Kajiado CMELRC No. E001/2023 pending hearing and determination of the application and the Appeal herein.
2. The application was supported by the Affidavit of JUDY SAMBAY the Human Resource Manager of the Applicant herein who averred that on 20th July,2023 Honourable R.A OGANYO delivered a judgment in favour of the Respondent awarding him Kshs 370,525/= as compensation, notice pay and severance pay, costs and interests of the suit.
3. The Applicant being dissatisfied with the above judgment preferred an appeal against the decision and wrote to the Executive officer for a certified copy of typed proceedings, judgement and decree to facilitate swift process of appeal.
4. The Applicant averred that the Appeal has high chances of success as seen in its grounds of appeal for example the award of severance pay when the Respondent was not declared redundant, that the Respondent was not terminated but he resigned and the awards among others.
5. The Applicant averred that if the stay orders were not granted the appeal would be rendered nugatory and occasion it substantial loss and damage since the Respondent had no known source of income to reimburse the Applicant the decretal sum incase the appeal is successful.
6. The Applicant averred that it was ready and willing to provide security as may be determined by the court to ensure due performance of the decree. That the application would not occasion any prejudice to the Respondent and it was in the interest of justice and equity that the prayers sought were granted.
7. In reply the Respondent filed their replying Affidavit sworn on 28th August, 2023 and averred that the Applicant had not demonstrated how or shown how payment of the decree will affect the operation of its business and what substantial loss or irreparable loss the applicant stood to suffer. That the Applicant intended to frustrate him from enjoyment of the judgment.
8. The Respondent averred that the Applicant had not met the conditions for grant of stay orders and the same should be denied. He averred that he was not a pauper as alleged as he had consolidated contribution with NSSF of Kshs 145,421/= hence capable of refunding the decretal sum should the Appeal be successful and he was in a gainful employment as a boda boda rider.
9. The Respondent averred that the Appeal had no chances of success and should the court find the application merited it should order payment of half of decree sum to him and the other half be deposited to court within 7 days.
DETERMINATION
10. The Civil Procedure rules under Order 42 Rule 6 gives the grounds upon which this Court exercises the discretion to grant a stay of execution which stipulates as follows;
(2) 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.
11. In Nicholas Stephen Okaka & another v Alfred Waga Wesonga [2022] eKLR the court in support of the above provision held as follows: -
Therefore, an applicant for stay of execution of a decree or order pending appeal is obliged to satisfy the conditions set out in Order 42 Rule 6(2), aforementioned: namely
(a) that substantial loss may result to the applicant unless the order is made,
(b) that the application has been made without unreasonable delay, and
(c) that such security as the court orders for the due performance of such decree or order as may ultimately be binding on the applicant has been given.
12. As to what substantial loss is, it was observed by Gikonyo J in the case of James Wangalwa & Anor v Agnes Naliaka Cheseto [2012] eKLR. Where the learned Judge observed:
“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. This is what substantial loss would entail.
13. As observed in the cases cited above, the Applicant stated that they knew the Respondent as a pauper who could not restitute the Applicant incase appeal succeeds while the Respondent submitted that it had NSSF savings of Kshs 145,421/= as well as he is employed as a boda boda rider. This amount cannot reinstitute the full decree sum. It can only cover half of it. The Appellant has therefore proved risk of substantial loss on its part if the stay is not granted.
14. The Court is also satisfied that there has been no inordinate delay in bringing the instant application as the judgment and decree being appealed against was delivered on the 20.7.2023 and the Memorandum of Appeal and this application filed on the 15.8.2023 before 30 days of appeal expired.
15. From the foregoing the applicant has met the condition for grant of stay of execution and the same is hereby granted on condition that the decretal sum be deposited in Court within 30 days of this order.
16. It is so ordered.
Dated at Nairobi this 14th day of December, 2023
Delivered virtually this 14th day of December, 2023
Abuodha N.J
Judge
2. The application was supported by the Affidavit of JUDY SAMBAY the Human Resource Manager of the Applicant herein who averred that on 20th July,2023 Honourable R.A OGANYO delivered a judgment in favour of the Respondent awarding him Kshs 370,525/= as compensation, notice pay and severance pay, costs and interests of the suit.
3. The Applicant being dissatisfied with the above judgment preferred an appeal against the decision and wrote to the Executive officer for a certified copy of typed proceedings, judgement and decree to facilitate swift process of appeal.
4. The Applicant averred that the Appeal has high chances of success as seen in its grounds of appeal for example the award of severance pay when the Respondent was not declared redundant, that the Respondent was not terminated but he resigned and the awards among others.
5. The Applicant averred that if the stay orders were not granted the appeal would be rendered nugatory and occasion it substantial loss and damage since the Respondent had no known source of income to reimburse the Applicant the decretal sum incase the appeal is successful.
6. The Applicant averred that it was ready and willing to provide security as may be determined by the court to ensure due performance of the decree. That the application would not occasion any prejudice to the Respondent and it was in the interest of justice and equity that the prayers sought were granted.
7. In reply the Respondent filed their replying Affidavit sworn on 28th August, 2023 and averred that the Applicant had not demonstrated how or shown how payment of the decree will affect the operation of its business and what substantial loss or irreparable loss the applicant stood to suffer. That the Applicant intended to frustrate him from enjoyment of the judgment.
8. The Respondent averred that the Applicant had not met the conditions for grant of stay orders and the same should be denied. He averred that he was not a pauper as alleged as he had consolidated contribution with NSSF of Kshs 145,421/= hence capable of refunding the decretal sum should the Appeal be successful and he was in a gainful employment as a boda boda rider.
9. The Respondent averred that the Appeal had no chances of success and should the court find the application merited it should order payment of half of decree sum to him and the other half be deposited to court within 7 days.
DETERMINATION
10. The Civil Procedure rules under Order 42 Rule 6 gives the grounds upon which this Court exercises the discretion to grant a stay of execution which stipulates as follows;
(2) 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.
11. In Nicholas Stephen Okaka & another v Alfred Waga Wesonga [2022] eKLR the court in support of the above provision held as follows: -
Therefore, an applicant for stay of execution of a decree or order pending appeal is obliged to satisfy the conditions set out in Order 42 Rule 6(2), aforementioned: namely
(a) that substantial loss may result to the applicant unless the order is made,
(b) that the application has been made without unreasonable delay, and
(c) that such security as the court orders for the due performance of such decree or order as may ultimately be binding on the applicant has been given.
12. As to what substantial loss is, it was observed by Gikonyo J in the case of James Wangalwa & Anor v Agnes Naliaka Cheseto [2012] eKLR. Where the learned Judge observed:
“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. This is what substantial loss would entail.
13. As observed in the cases cited above, the Applicant stated that they knew the Respondent as a pauper who could not restitute the Applicant incase appeal succeeds while the Respondent submitted that it had NSSF savings of Kshs 145,421/= as well as he is employed as a boda boda rider. This amount cannot reinstitute the full decree sum. It can only cover half of it. The Appellant has therefore proved risk of substantial loss on its part if the stay is not granted.
14. The Court is also satisfied that there has been no inordinate delay in bringing the instant application as the judgment and decree being appealed against was delivered on the 20.7.2023 and the Memorandum of Appeal and this application filed on the 15.8.2023 before 30 days of appeal expired.
15. From the foregoing the applicant has met the condition for grant of stay of execution and the same is hereby granted on condition that the decretal sum be deposited in Court within 30 days of this order.
16. It is so ordered.
Dated at Nairobi this 14th day of December, 2023
Delivered virtually this 14th day of December, 2023
Abuodha N.J
Judge