Keneth Kiplagat Kamuren seeks an order of stay of execution of the judgment and decree issued on 7th March 2024 by the court pending hearing and determination of appeal in the court of appeal. The applicant has filed an appeal in the court of appeal. The applicant believes that he has a good appeal in the Court of Appeal. The applicant believes that if stay is not granted he will suffer substantial loss.
The respondent in her reply argues that costs are yet to be taxed hence application for stay of execution is premature. That she has not applied for leave to execute the decree. The respondent argues that the applicant has not offered any security for costs. Moreover, that the applicant has not demonstrated that he will suffer substantial loss if the decree is executed.
The principles guiding the grant of a stay of execution pending appeal are well settled. These principles are provided for under Order 42 rule 6(2) of the Civil Procedure Rules which provides:
“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.
The court, in RWW v EKW [2019] eKLR, considered the purpose of a stay of execution order pending appeal, in the following words:
“The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should 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.
9. Indeed to grant or refuse an application for stay of execution pending appeal is discretionary. The Court when granting the stay however, must balance the interests of the Appellant with those of the Respondent.”
I have considered the application and reply and do find that the application was filed without unreasonable delay. On substantial loss, I do find that the applicant has not demonstrated that he will suffer substantial loss in the event he pays the decretal amount which he has not indicated. There is no decree.
The applicant has not demonstrated that the respondent will be unable to refund any money awarded by the court if he succeeds in appeal. Lastly, the applicant has not demonstrated that he is able to deposit any security in court. I do find the application without merit and the same is dismissed with costs.
Ruling dated signed and delivered electronically at Nakuru this 26th day of September 2024.
The respondent in her reply argues that costs are yet to be taxed hence application for stay of execution is premature. That she has not applied for leave to execute the decree. The respondent argues that the applicant has not offered any security for costs. Moreover, that the applicant has not demonstrated that he will suffer substantial loss if the decree is executed.
The principles guiding the grant of a stay of execution pending appeal are well settled. These principles are provided for under Order 42 rule 6(2) of the Civil Procedure Rules which provides:
“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.
The court, in RWW v EKW [2019] eKLR, considered the purpose of a stay of execution order pending appeal, in the following words:
“The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should 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.
9. Indeed to grant or refuse an application for stay of execution pending appeal is discretionary. The Court when granting the stay however, must balance the interests of the Appellant with those of the Respondent.”
I have considered the application and reply and do find that the application was filed without unreasonable delay. On substantial loss, I do find that the applicant has not demonstrated that he will suffer substantial loss in the event he pays the decretal amount which he has not indicated. There is no decree.
The applicant has not demonstrated that the respondent will be unable to refund any money awarded by the court if he succeeds in appeal. Lastly, the applicant has not demonstrated that he is able to deposit any security in court. I do find the application without merit and the same is dismissed with costs.
Ruling dated signed and delivered electronically at Nakuru this 26th day of September 2024.