1. The application before court is a motion dated 30 August 2024 expressed to be brought under sections, 3, 3A and 63 (c) of the Civil Procedure Act, cap. 21; Order 42 rule 6 and Order 51 rule 1 of the Civil procedure Rules. The prayers have been couched as follows:
“1. That this application be certified as urgent during the Court's Recess and service of the same be dispensed with in the first instance.
2.That this Honourable Court be pleased to order a stay of execution of the judgment and decree dated 27th June 2024 and decree herein pending the hearing and determination of the application herewith inter-parties.
3.That this Honourable Court be pleased to order a stay of execution of the judgment and decree dated 2th June 2024 and decree herein pending the hearing and determination of the appeal herein.”
The applicant has also asked for an order on the costs of the application.
2. The application is supported by the affidavit of Idha Mbarak Ali who has sworn that he is the director of the defendant/applicant and that on 7 November 2022, the respondent filed the instant suit against the applicant. On 27 June 2024, judgment was delivered against the applicant and, being dissatisfied with the judgment, the applicant filed an appeal, apparently in the Court of Appeal, against the judgment.
3. Subsequently, in an apparent move to execute the judgment, the auctioneers went to the applicant’s premises and served the applicant with a warrant of execution and a proclamation. The applicant is aggrieved that the respondent is seeking more than what was decreed in a purported execution of the decree.
4. The applicant fears that if execution proceeds, the appeal will be rendered nugatory. It has also been sworn that after the delivery of the judgment, the applicant has visited the court registry on numerous occasions for the proceedings but the applicant has been consistently informed “that the file had not been received from Nyeri.”
5. In response to the motion, the respondent filed a replying affidavit sworn by himself on 10 September 2024. According to the respondent, on 27 June 2024, judgment was delivered in his favour against the applicant in the sum of 290,380 Euros and costs of 5,865 Euros. In the same judgment, the applicant’s counter-claim of Kshs. 650,000/- was dismissed with costs.
6. After delivery of the judgment, the applicant was granted thirty days’ stay of execution and it is only after the lapse of this period that the respondent sought to execute the decree.
7. The motion is opposed and an affidavit to this effect has been filed by the respondent himself who has denied that he is seeking more than what was decreed by the court. On the contrary, it is sworn, the respondent is seeking the shilling equivalent of the amount he was awarded by the court.
8. It has also been sworn in opposition to the application that the applicant has not demonstrated the substantial loss it is likely to suffer if stay of execution is not granted and neither has the applicant provided any security for the performance of the decree.
9. It is not in dispute that the grant of stay under Order 42 Rule 6(1) of the Civil Procedure Rules is discretionary. The rule provides as follows:
No appeal or second appeal shall operate as a stay of execution or proceedings 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.
10. However, this discretion is tampered with by Order 42 Rule 6(2) which outlines the circumstances when discretion will not be exercised in favour of an applicant. To be precise, sub-rule 2 of rule 6 sets out circumstances when grant of stay of execution will be declined notwithstanding the latitude given to court to exercise its discretion under Rule 6(1). Thus, the exercise of discretion under Rule (1) is, to some degree, subject to Rule 6(2) which provides as follows:
No order for stay of execution shall be made under sub rule (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 the decree or order as may ultimately be binding on him has been given by the applicant.
11. Thus, over and above the discretion with which the court is clothed to grant or refuse stay, it must be certain, before it grants any stay that firstly, the appellant has satisfied the court that he will suffer substantial loss if the order for stay is not made, secondly, he has demonstrated that his application has been made without unreasonable delay and thirdly, he has given security for satisfaction or performance of the decree in the event his appeal fails.
12. To the extent that grant of stay under order 42 Rule 6(1) is discretionary, the satisfaction of these conditions does not automatically entitle an applicant to an order for stay of execution. The conditions under order 42 Rule 6(2) are less of conditions for granting an order for stay of execution but more of grounds for refusal of such an order. That is, the court may very well decline to grant an order for stay even after satisfaction of the conditions set out in Order 42 Rule 6(2) as long as its discretion is exercised judiciously and not whimsically. If it was to be argued that an applicant is automatically entitled to the stay of execution upon satisfaction of the conditions in Rule 6 (2) of Order 42 then discretion with which the court is clothed in Rule 6(1) would be of no consequence.
13. In Mukuma v Abuoga (1988) KLR 645, a decision which has been cited by the respondent in support of submissions filed on his behalf, the Court of Appeal compared granting stay under Order 42 of the Civil Procedure Rules and Rule 5(2) (b) of the Court of Appeal Rules and held as follows:
“Granting a stay in the High Court is governed by Order XLI Rule 4 (2), the questions to be decided being-(a) whether substantial loss may result unless the stay is granted and the application is made without delay; and (b) the applicant has given security. The discretion under Rule 5(2) (b) is at large, but as was pointed out in the Kenya Shell case substantial loss is the cornerstone of both jurisdictions. That is what has to be prevented, because such loss would render the appeal nugatory. Therefore it is necessary to preserve the status quo. (p.647).
Order XLI Rule (2) to which reference has been made is now Order 42 rule 6 (2) under the Civil Procedure Rules, 2010.
14. The instant application was filed on 30 August 2024 but judgment was delivered on 27 June 2024. The application was, thus, filed more than two months after the delivery of the judgment. One of the conditions which the applicant has to satisfy before the court can exercise its discretion in his favour is the timeous filing of the application for the order of stay of execution. Therefore, it behoved the applicant to provide sufficient explanation for the delay in filing the instant application.
15. In the affidavit sworn on its behalf, no explanation of any sort has been provided by the applicant why the application could not be filed immediately or within such a reasonable time after the delivery of the judgment. The closest the applicant has come to in explaining the delay is in paragraph 9 of Ali’s affidavit where he has sworn that:
“That since the delivery of judgment I visited the court registry many times to follow up on the typing of the proceedings and it was confirmed that the file had not been received from Nyeri.”
16. This, in my humble view, does not explain the delay in filing the application as the applicant does not say that the proceedings were necessary to file the application for stay. In any event, the only proof that the applicant ever asked for the proceedings is a letter dated 2 July 2024 addressed to the deputy registrar by counsel for the applicant seeking for “the certified copies of proceedings and judgment herein for the purposes of an appeal”. The proceedings were sought, not for the purposes of filing the application for stay but to file an appeal.
17. Apart from the lack of explanation for the delay, nowhere in the applicant’s affidavit has it been sworn that the applicant will suffer substantial loss if the order for stay of execution is not granted.
18. As far as security for the performance of the decree is concerned, Ali has sworn that:
“That the tractors and vehicles proclaimed are good security if need be.”
19. Certainly, the goods proclaimed in execution process cannot be said to be the security for the performance of the decree contemplated under Order 42 Rule 6(2) of the Civil Procedure Rules.
20. Nonetheless, provision of security is only one of the conditions the court will consider, in exercising its discretion to stay execution of a decree or order pending appeal. As the Court of Appeal held in Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR), the ultimate goal is to ensure that if the appeal is not frivolous, it is not rendered nugatory. A passage from the leading judgment of Madan, J.A. is instructive in this regard. The learned judge held as follows:
“If there is no other overwhelming hindrance, a stay ought to be granted so that an appeal, if successful, may not be nugatory. A stay which would otherwise be granted ought not to be refused because the judge considers that another, which in his opinion will be a better remedy, will become available to the applicant at the conclusion of the proceedings.
It is in the discretion of the court to grant or refuse a stay but what has to be judged in every case is whether there are or not particular circumstances in the case to make an order staying execution. It has been said that the court as a general rule ought to exercise its best discretion in a way so as not to prevent the appeal, if successful from being nugatory, per Brett, LJ in Wilson v Church (No 2) 12 Ch D (1879) 454 at p 459. In the same case, Cotton LJ said at p 458:
“I will state my opinion that when a party is appealing, exercising his undoubted right of appeal, this court ought to see that the appeal, if successful, is not nugatory.”
Megarry J, as he then was, followed Wilson (supra) in Erinford Properties Limited v Cheshire County Council [1974] 2 All ER 448 at p 454 and also held that there was no inconsistency in granting such an injunction after dismissing the motion, for the purpose of the order is to prevent the Court of Appeal’s decision being rendered nugatory should that court reverse the judge’s decision. The court will grant a stay where special circumstances of the case so require, per Lopes LJ in the Attorney General v Emerson and Others 24 QBD (1889) 56 at p 59. The special circumstances in this case are that there is a large amount of rent in dispute between the parties and the appellant has an undoubted right of appeal.
Proceeding on this narrow basis, that is to prevent the appeal, if successful, from being nugatory, I would grant the stay asked for pending determination of the appeal by this court against the decision dated January 9, 1979 but upon terms, as authorised by the provisions of Order XLI rule 4(2)(b), that the applicant will deposit in court within thirty days the sum of Kshs 60,000 as security for the due performance of such decree or order as may ultimately be binding upon him, failing which the stay shall lapse without a further order of this court being necessary. I would order the costs of this application to be costs in the appeal.”
21. It has already been noted that the applicant has not demonstrated how substantial loss will result if stay of execution is not granted. In the absence of such a demonstration, it cannot be argued that the appeal will be rendered nugatory if stay is not granted.
22. For the reasons I have given I am not persuaded that the applicant’s application has any merits. It is hereby dismissed with costs to the respondent. Orders accordingly.
“1. That this application be certified as urgent during the Court's Recess and service of the same be dispensed with in the first instance.
2.That this Honourable Court be pleased to order a stay of execution of the judgment and decree dated 27th June 2024 and decree herein pending the hearing and determination of the application herewith inter-parties.
3.That this Honourable Court be pleased to order a stay of execution of the judgment and decree dated 2th June 2024 and decree herein pending the hearing and determination of the appeal herein.”
The applicant has also asked for an order on the costs of the application.
2. The application is supported by the affidavit of Idha Mbarak Ali who has sworn that he is the director of the defendant/applicant and that on 7 November 2022, the respondent filed the instant suit against the applicant. On 27 June 2024, judgment was delivered against the applicant and, being dissatisfied with the judgment, the applicant filed an appeal, apparently in the Court of Appeal, against the judgment.
3. Subsequently, in an apparent move to execute the judgment, the auctioneers went to the applicant’s premises and served the applicant with a warrant of execution and a proclamation. The applicant is aggrieved that the respondent is seeking more than what was decreed in a purported execution of the decree.
4. The applicant fears that if execution proceeds, the appeal will be rendered nugatory. It has also been sworn that after the delivery of the judgment, the applicant has visited the court registry on numerous occasions for the proceedings but the applicant has been consistently informed “that the file had not been received from Nyeri.”
5. In response to the motion, the respondent filed a replying affidavit sworn by himself on 10 September 2024. According to the respondent, on 27 June 2024, judgment was delivered in his favour against the applicant in the sum of 290,380 Euros and costs of 5,865 Euros. In the same judgment, the applicant’s counter-claim of Kshs. 650,000/- was dismissed with costs.
6. After delivery of the judgment, the applicant was granted thirty days’ stay of execution and it is only after the lapse of this period that the respondent sought to execute the decree.
7. The motion is opposed and an affidavit to this effect has been filed by the respondent himself who has denied that he is seeking more than what was decreed by the court. On the contrary, it is sworn, the respondent is seeking the shilling equivalent of the amount he was awarded by the court.
8. It has also been sworn in opposition to the application that the applicant has not demonstrated the substantial loss it is likely to suffer if stay of execution is not granted and neither has the applicant provided any security for the performance of the decree.
9. It is not in dispute that the grant of stay under Order 42 Rule 6(1) of the Civil Procedure Rules is discretionary. The rule provides as follows:
No appeal or second appeal shall operate as a stay of execution or proceedings 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.
10. However, this discretion is tampered with by Order 42 Rule 6(2) which outlines the circumstances when discretion will not be exercised in favour of an applicant. To be precise, sub-rule 2 of rule 6 sets out circumstances when grant of stay of execution will be declined notwithstanding the latitude given to court to exercise its discretion under Rule 6(1). Thus, the exercise of discretion under Rule (1) is, to some degree, subject to Rule 6(2) which provides as follows:
No order for stay of execution shall be made under sub rule (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 the decree or order as may ultimately be binding on him has been given by the applicant.
11. Thus, over and above the discretion with which the court is clothed to grant or refuse stay, it must be certain, before it grants any stay that firstly, the appellant has satisfied the court that he will suffer substantial loss if the order for stay is not made, secondly, he has demonstrated that his application has been made without unreasonable delay and thirdly, he has given security for satisfaction or performance of the decree in the event his appeal fails.
12. To the extent that grant of stay under order 42 Rule 6(1) is discretionary, the satisfaction of these conditions does not automatically entitle an applicant to an order for stay of execution. The conditions under order 42 Rule 6(2) are less of conditions for granting an order for stay of execution but more of grounds for refusal of such an order. That is, the court may very well decline to grant an order for stay even after satisfaction of the conditions set out in Order 42 Rule 6(2) as long as its discretion is exercised judiciously and not whimsically. If it was to be argued that an applicant is automatically entitled to the stay of execution upon satisfaction of the conditions in Rule 6 (2) of Order 42 then discretion with which the court is clothed in Rule 6(1) would be of no consequence.
13. In Mukuma v Abuoga (1988) KLR 645, a decision which has been cited by the respondent in support of submissions filed on his behalf, the Court of Appeal compared granting stay under Order 42 of the Civil Procedure Rules and Rule 5(2) (b) of the Court of Appeal Rules and held as follows:
“Granting a stay in the High Court is governed by Order XLI Rule 4 (2), the questions to be decided being-(a) whether substantial loss may result unless the stay is granted and the application is made without delay; and (b) the applicant has given security. The discretion under Rule 5(2) (b) is at large, but as was pointed out in the Kenya Shell case substantial loss is the cornerstone of both jurisdictions. That is what has to be prevented, because such loss would render the appeal nugatory. Therefore it is necessary to preserve the status quo. (p.647).
Order XLI Rule (2) to which reference has been made is now Order 42 rule 6 (2) under the Civil Procedure Rules, 2010.
14. The instant application was filed on 30 August 2024 but judgment was delivered on 27 June 2024. The application was, thus, filed more than two months after the delivery of the judgment. One of the conditions which the applicant has to satisfy before the court can exercise its discretion in his favour is the timeous filing of the application for the order of stay of execution. Therefore, it behoved the applicant to provide sufficient explanation for the delay in filing the instant application.
15. In the affidavit sworn on its behalf, no explanation of any sort has been provided by the applicant why the application could not be filed immediately or within such a reasonable time after the delivery of the judgment. The closest the applicant has come to in explaining the delay is in paragraph 9 of Ali’s affidavit where he has sworn that:
“That since the delivery of judgment I visited the court registry many times to follow up on the typing of the proceedings and it was confirmed that the file had not been received from Nyeri.”
16. This, in my humble view, does not explain the delay in filing the application as the applicant does not say that the proceedings were necessary to file the application for stay. In any event, the only proof that the applicant ever asked for the proceedings is a letter dated 2 July 2024 addressed to the deputy registrar by counsel for the applicant seeking for “the certified copies of proceedings and judgment herein for the purposes of an appeal”. The proceedings were sought, not for the purposes of filing the application for stay but to file an appeal.
17. Apart from the lack of explanation for the delay, nowhere in the applicant’s affidavit has it been sworn that the applicant will suffer substantial loss if the order for stay of execution is not granted.
18. As far as security for the performance of the decree is concerned, Ali has sworn that:
“That the tractors and vehicles proclaimed are good security if need be.”
19. Certainly, the goods proclaimed in execution process cannot be said to be the security for the performance of the decree contemplated under Order 42 Rule 6(2) of the Civil Procedure Rules.
20. Nonetheless, provision of security is only one of the conditions the court will consider, in exercising its discretion to stay execution of a decree or order pending appeal. As the Court of Appeal held in Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR), the ultimate goal is to ensure that if the appeal is not frivolous, it is not rendered nugatory. A passage from the leading judgment of Madan, J.A. is instructive in this regard. The learned judge held as follows:
“If there is no other overwhelming hindrance, a stay ought to be granted so that an appeal, if successful, may not be nugatory. A stay which would otherwise be granted ought not to be refused because the judge considers that another, which in his opinion will be a better remedy, will become available to the applicant at the conclusion of the proceedings.
It is in the discretion of the court to grant or refuse a stay but what has to be judged in every case is whether there are or not particular circumstances in the case to make an order staying execution. It has been said that the court as a general rule ought to exercise its best discretion in a way so as not to prevent the appeal, if successful from being nugatory, per Brett, LJ in Wilson v Church (No 2) 12 Ch D (1879) 454 at p 459. In the same case, Cotton LJ said at p 458:
“I will state my opinion that when a party is appealing, exercising his undoubted right of appeal, this court ought to see that the appeal, if successful, is not nugatory.”
Megarry J, as he then was, followed Wilson (supra) in Erinford Properties Limited v Cheshire County Council [1974] 2 All ER 448 at p 454 and also held that there was no inconsistency in granting such an injunction after dismissing the motion, for the purpose of the order is to prevent the Court of Appeal’s decision being rendered nugatory should that court reverse the judge’s decision. The court will grant a stay where special circumstances of the case so require, per Lopes LJ in the Attorney General v Emerson and Others 24 QBD (1889) 56 at p 59. The special circumstances in this case are that there is a large amount of rent in dispute between the parties and the appellant has an undoubted right of appeal.
Proceeding on this narrow basis, that is to prevent the appeal, if successful, from being nugatory, I would grant the stay asked for pending determination of the appeal by this court against the decision dated January 9, 1979 but upon terms, as authorised by the provisions of Order XLI rule 4(2)(b), that the applicant will deposit in court within thirty days the sum of Kshs 60,000 as security for the due performance of such decree or order as may ultimately be binding upon him, failing which the stay shall lapse without a further order of this court being necessary. I would order the costs of this application to be costs in the appeal.”
21. It has already been noted that the applicant has not demonstrated how substantial loss will result if stay of execution is not granted. In the absence of such a demonstration, it cannot be argued that the appeal will be rendered nugatory if stay is not granted.
22. For the reasons I have given I am not persuaded that the applicant’s application has any merits. It is hereby dismissed with costs to the respondent. Orders accordingly.