Ryce East Africa Limited AND Bonface Kariuki Muthe VS Fredrick Shariff Kazungu & Grace Jumwa Yaa KAZUNGU SHARIFF (Deceased)

RULING

1. By a Notice of Motion dated 15.11.23, the Appellants seek stay of execution of the judgement delivered in favour of the Respondents, on 16.10.23 in Kilifi SPMCC No. E416 of 2022, pending appeal. The grounds upon which the Application are premises are set out in the Application and in the supporting affidavit sworn on even date by Sophie Omolo, the legal Manager of First Assurance Company Limited, the insurers of the Appellants herein. 
2. The Respondents opposed the application through a replying affidavit sworn on 21.8.23 by their counsel, Geoffrey Kilonzo.
3. The Appellants are aggrieved by the judgement of the trial court and have already filed an appeal against the said decision. In particular, the Appellants are aggrieved by the award of damages which they claim to be manifestly excessive and incomparable to current judicial awards in analogous cases. 
4. The Appellants are apprehensive that the Respondents may move to execute the judgment at any time thereby occasioning them substantial and irreparable loss. Further that unless stay is granted, the appeal which has high chances of success will be rendered nugatory. The Appellants pleaded that they have moved the Court expeditiously and that it is only fair and just that the orders sought be granted.
5. The Respondent’s reply is that the Application is brought in bad faith and is meant to deny the Respondents the fruit of litigation, is bad in law, incompetent and is an abuse of the court process. It was further averred that the Appellants have not offered security, which is a prerequisite for an application for stay of execution.  Further that the appeal has no likelihood of success as the lower court properly applied the principles of law in awarding loss of dependency.  
6. It was further averred that the life of a member of their family was lost due to the Appellants’ negligence. As such granting the orders sought will greatly prejudice the Respondents and occasion them undue hardship. Further that should the appeal succeed, the Respondents are capable of refunding the decretal amount. The Respondents urged that the Application which is bad in law be dismissed with costs.                                                                                                                                                                                                                          
7. The Respondents submitted that the affidavit in support of the Application that is sworn by the Legal Manager of First Assurance Company Limited is incompetent as she is a stranger to the suit. Further that First Assurance Company Limited is not a party to the suit and that there is no document authorizing the swearing of the affidavit. The Respondents urged that the affidavit be struck out and by extension the Application which cannot stand on its own unsupported by an affidavit.
8. With respect, this issue was not raised in the replying affidavit. Having been raised for the first time in submissions, it is best ignored.  In this regard, I am duly guided by the holding in _________________ where the Court of Appeal stated:______________________
9. The jurisdiction of the Court to grant stay of execution is set out in Order 42 Rule 6 of the Civil Procedure Rules. Sub-rule 2 provides:

(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 order for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.

1. A party seeking stay of execution must demonstrate that substantial loss may result to the party unless the order is made, that the application has been made without unreasonable delay, and finally that the party has given such security as the court orders for the due performance of the decree in question. 
2. The general rule regarding an order for stay of execution is that first and foremost, it is discretionary. Where the Court is called upon, as in the present case, to exercise its discretion in any application, it must do so judicially, the overriding objective being to ensure that the ends of justice are met.
3. The Court of Appeal set out the factors to be considered in an application for stay of execution pending appeal in the Butt v Rent Restriction Tribunal [1982] KLR 417, as follows:

1. The power of the court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.

2.  The general principle in granting or refusing a stay is; if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should that appeal court reverse the judge’s discretion.

3.  A judge should not refuse a stay if there are good grounds for granting it merely because in his opinion, a better remedy may become available to the applicant at the end of the proceedings.

4.  The court in exercising its discretion whether to grant [or] refuse an application for stay will consider the special circumstances of the case and unique requirements.  The special circumstances in this case were that there was a large amount of rent in dispute and the appellant had an undoubted right of appeal.

5.  The court in exercising its powers under Order XLI rule 4(2)(b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion.  Failure to put security for costs as ordered will cause the order for stay of execution to lapse.

1. Flowing from the cited decision, it can be discerned that while considering an application for stay, the discretion of the Court must be exercised in a manner that will not prevent an appeal or render an appeal nugatory. The Court will consider whether there is any overwhelming hinderance for the grant of stay; whether good grounds have been advanced; existence of any special circumstances and unique requirements. Lastly the Court may order security for costs.
2. Access to justice is a right enshrined in Article 48 of the Constitution and extends to the right to appeal. As such, a party’s right to appeal should be protected by ensuring that such party’s appeal is not rendered nugatory. In exercising its discretion, the Court must 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.
3. The Appellant submitted that no proof was furnished to show the Respondents’ financial status and means. As such, it can be inferred that the Respondents are incapable of repaying the decretal sum should the appeal be successful. For the Respondents, it was submitted that the Appellant has not proved the substantial loss that would be lost should the stay sought be denied. Further it has not been pleaded that the Respondents will not be able to refund the decretal sum should the appeal succeed and that the inference that should be drawn is that they will be able to refund the amount.
4. It is trite law that the purpose of stay of execution is to preserve the substratum of the matter in dispute. 
5. In the case of James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, Gikonyo, J. had this to say on substantial loss.

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, a question that was aptly discussed in the case of Silverstein N. Chesoni [2002] 1KLR 867, and also in the case of Mukuma V Abuoga quoted above. The last case, referring to the exercise of discretion by the High Court and the Court of Appeal in the granting stay of execution, under Order 42 of the CPR and Rule 5(2) (b) of the Court of Appeal Rules, respectively, emphasized the centrality of substantial loss thus:

“…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”

1. In this case, the Respondents other than the inference referred to in their submissions, the Respondents have not demonstrated their ability to repay the decretal sum in the event that the appeal succeeds. I am thus persuaded that there is sufficient basis to preserve the substratum of the appeal. 
2. The law requires that an application for stay of execution be filed without unreasonable delay. The decision appealed against was made on 16.10.23 while the Application was filed on 16.11.23. The Application was thus filed without undue delay.
3. In light of the foregoing, the Court has formed the opinion that there is no overwhelming hinderance to grant the stay sought herein. Accordingly, the Application succeeds and I allow the same on the following terms:
4. The entire decretal sum shall be deposited in Court by 20.12.24.
5. The record of appeal shall be filed and served by 20.12.24.
6. In default, the stay so granted shall lapse.
7. The costs of this application shall abide the outcome of the appeal.

DATED, SIGNED and DELIVERED in MALINDI this 13^th day of December 2024