1. The Applicant filed application dated 29thMarch, 2023 seeking for orders of stay of execution of orders issued on 1st March,2023 pending hearing and determination of the appeal herein.
2. The application was supported by the Affidavit of JOSEPH KANJA MWANGI the Operations Manager of the Applicant herein who averred that on 1st March,2023 Honourable G.M Gitonga(PM) delivered a judgment in favour of the Respondent awarding him Kshs 483,887.09 as general damages, terminal dues and interest. The Applicant was granted thirty days stay of execution by the subordinate court upon the delivery of the judgment.
3. The Applicant averred that it was aggrieved and dissatisfied with the said Judgment and intended to appeal against the whole Judgment. In that regard the applicant filed a memorandum of appeal dated 29th March, 2023.
4. The Applicant further averred that in the event the Respondent executes the decree and the appeal becomes successful, the Respondent shall not be able to restitute the Applicant as he does not have the capacity due to no known assets that can be attached and sold.
5. The Applicant averred that it was ready to abide by all conditions as may be imposed by the court and that if the application was not allowed as prayed the Applicant would suffer irreparable damage yet no prejudice will be occasioned to the Respondent.
6. In reply the Respondent filed their replying Affidavit sworn on 5th April, 2023 and averred that the Applicant was not coming to court with clean hands as it has not expressly stated whether they had filed the appeal or not and in the event the court is convinced to grant the Application the Applicant be ordered to deposit the decretal amount in court.
DETERMINATION
7. The grounds upon which this Court exercises the discretion to grant a stay of execution are well governed by the Civil Procedure rules under Order 42 Rule 6 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.
8. In Joseph Odide Walome v David Mbadi Akello [2022] eKLR the court held as follows;
An applicant needs to satisfy the court on the following conditions before they can be granted the stay orders:
a. Substantial loss may result to the applicant unless the order is made,
b. The application has been made without unreasonable delay, and
c. Such security as the court orders for the due performance of the decree or order as may ultimately be binding on the applicant has been given by the applicant.
9. In the case of Halal & Another v Thornton & Turpin Ltd [1990] eKLR citing the case of Rasiklal Somabhai Patel v Parklands Properties Ltd it was stated:
“ that before a Court could decide the application (for stay of execution) it must have regard to the requirements of Order XLI rule 4(2) of the Civil Procedure Rules under which the applicant had to satisfy the court of two matters…Firstly, that substantial loss may result to the applicant unless the application is granted, which prima facie means that if the appeal succeeds, the respondent would not be in a position to make full restitution. Secondly, the applicant had to give such security as the court may order. Those are the requirements under Order XLI rule 4(2) of the Civil Procedure Rules.
10. On the issue of substantial loss, this has been ably explained 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.
11. As observed in the cases cited above, the Applicant stated that they knew the Respondent and he could not restitute the Applicant incase execution takes place and the Appeal ultimately becomes successful.
12. The Applicant has approached this court without undue delay since the Judgment was delivered on 1st March,2023, applied for stay in lower court for 30 days which expired on 31st March,2023 and made this application on 29th March, 2023. It filed the Memorandum of Appeal on 29th March,2023 before the leave granted in the lower court expired.
13. The Applicant is also willing to abide by any conditions the court might deem fit to impose prior to granting a stay of execution. The court is therefore of the view that the Applicant has met the conditions for grant of stay of execution and the same is hereby granted on terms that the decretal sum shall be deposited in Court within 60 days of this ruling.
14. It is so ordered.
Dated at Nairobi this 27th day of October, 2023
Delivered virtually this 27th day of October, 2023
Abuodha Jorum Nelson
Judge