RULING
What is before me is the Appellants’ Notice of Motion dated 13/02/2025 seeking for an order of stay of execution of the judgement in Kilungu MCCC E114 of 2023 delivered on23/12/2024 pending the hearing and determination of the appeal preferred from the said judgment.
The application is supported by the grounds set out on its face and the affidavit of Moses Barasa, a Legal Officer with the Appellants’ insurer, Madison General Insurance Kenya Limited
The application is opposed vide the Respondent’s Replying Affidavit dated 20/03/2025
Where he contends that the application lacks s substance and is otherwise an abuse of the Court process and the same should be dismissed with costs. It is his position that the Applicants have not complied with the mandatory statutory conditions to warrant the grant of orders sought. That is to say that they have not demonstrated substantial loss that they will suffering the event the orders sought are not granted and that the deponent of the
Supporting Affidavit is the legal officer of the Insurance Company and not the parties herein.
The applicants filed submissions while the respondent chose to rely on his replying affidavit.
The application is brought underOrder 42 Rule 6 (1) and (2) of the Civil Procedure Rules which provides for grant of stay of execution in case of an appeal. It states:
6. (1) 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.
(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.
I have carefully considered the application, the response by the respondent and the submissions by the applicant. The issue for determination is whether the application has merit. To determine that the application must establish the following;
a) That the applicant is likely to suffer substantial loss in case the order of stay is not made;
b) That the application for stay of execution pending appeal was filed without unreasonable delay; and
c) That applicant is in a position to provide such security as the Honourable Court may order for the due performance of the decree that may ultimately be binding on the Applicants. First from the memorandum of appeal the issue of liability is not in contest, The appeal is about the quantum of damages. Unfortunately, in this case I did not see the Judgment of the trail court at the time of writing this ruling.
There is no contest that the sum involved is Ksh 1,000,000. The respondent has not demonstrated the ability to repay this money should it be released to him and the appeal succeeds.
The application was brought without any delay .
The applicant is willing to abide by orders of security,
The court must balance the interest of the applicant to be heard on appeal and those of the respondent who is a successful litigant.
I allow the application on the following grounds.
1. An order of Stay of execution of the judgment of the subordinate court be and is hereby granted pending appeal on condition that the respondent be paid the sum of Ksh 200,000 and Ksh 300,000 be deposited in a joint interest earning account in the names of both counsel within 45 days hereof.
2. In default the stay will lapse and the respondent will be at liberty to execute.
3. The Record of appeal be filed and served within 30 days hereof
4. Mention before the DR for compliance with (4) above on a date to be assigned by the court assistant
5. Orders accordingly.
Dated signed and delivered via CTS this 15th August 2025
Mumbua T Matheka
Judge
CA Chrispo l
What is before me is the Appellants’ Notice of Motion dated 13/02/2025 seeking for an order of stay of execution of the judgement in Kilungu MCCC E114 of 2023 delivered on23/12/2024 pending the hearing and determination of the appeal preferred from the said judgment.
The application is supported by the grounds set out on its face and the affidavit of Moses Barasa, a Legal Officer with the Appellants’ insurer, Madison General Insurance Kenya Limited
The application is opposed vide the Respondent’s Replying Affidavit dated 20/03/2025
Where he contends that the application lacks s substance and is otherwise an abuse of the Court process and the same should be dismissed with costs. It is his position that the Applicants have not complied with the mandatory statutory conditions to warrant the grant of orders sought. That is to say that they have not demonstrated substantial loss that they will suffering the event the orders sought are not granted and that the deponent of the
Supporting Affidavit is the legal officer of the Insurance Company and not the parties herein.
The applicants filed submissions while the respondent chose to rely on his replying affidavit.
The application is brought underOrder 42 Rule 6 (1) and (2) of the Civil Procedure Rules which provides for grant of stay of execution in case of an appeal. It states:
6. (1) 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.
(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.
I have carefully considered the application, the response by the respondent and the submissions by the applicant. The issue for determination is whether the application has merit. To determine that the application must establish the following;
a) That the applicant is likely to suffer substantial loss in case the order of stay is not made;
b) That the application for stay of execution pending appeal was filed without unreasonable delay; and
c) That applicant is in a position to provide such security as the Honourable Court may order for the due performance of the decree that may ultimately be binding on the Applicants. First from the memorandum of appeal the issue of liability is not in contest, The appeal is about the quantum of damages. Unfortunately, in this case I did not see the Judgment of the trail court at the time of writing this ruling.
There is no contest that the sum involved is Ksh 1,000,000. The respondent has not demonstrated the ability to repay this money should it be released to him and the appeal succeeds.
The application was brought without any delay .
The applicant is willing to abide by orders of security,
The court must balance the interest of the applicant to be heard on appeal and those of the respondent who is a successful litigant.
I allow the application on the following grounds.
1. An order of Stay of execution of the judgment of the subordinate court be and is hereby granted pending appeal on condition that the respondent be paid the sum of Ksh 200,000 and Ksh 300,000 be deposited in a joint interest earning account in the names of both counsel within 45 days hereof.
2. In default the stay will lapse and the respondent will be at liberty to execute.
3. The Record of appeal be filed and served within 30 days hereof
4. Mention before the DR for compliance with (4) above on a date to be assigned by the court assistant
5. Orders accordingly.
Dated signed and delivered via CTS this 15th August 2025
Mumbua T Matheka
Judge
CA Chrispo l