1. I have considered the application dated 4th October 2019 by the 1st Interested Party, M-Oriental Bank (“the Bank”), which seeks two main orders: first, a stay of execution of the Orders of Tuiyott J, made on 24th September 2019 and second, leave to appeal therefrom.
2. The parties are agreed that leave may be granted and on my part, I do not think that the intended appeal has no prospects of success. I therefore grant leave to appeal.
3. By the Ruling dated 24th September 2019, Tuiyott J., ordered as follows:
[19] My order is that the debt entry of Kshs. 10,689,883.50 made on 31st December 2016 in account No. 0070000472 shall be reversed forthwith as though it had never been made. The order shall be implemented within 14 days from the date hereof.
4. The plea for stay is opposed on the ground that the Bank has not complied with the order and is in contempt and should not be heard. The Respondents also urge that the Bank has not complied with the principles for grant of stay set out in Order 42 rule 6 of the Civil Procedure Rules.
5. I have considered the facts of the case alongside the well settled principles for the grant of stay and I am inclined to order a stay on terms which are now set out herein.
6. The application dated 4th October 2019 is allowed on the following terms:
i.) Leave be and is hereby granted to the 1st Interested Party, M-Oriental Bank Limited, to appeal against the Ruling and Order dated 24th September 2019.
ii.) The 1st Interested Party shall deposit the sum of Kes. 15, 000,000/00 in a joint interest accruing account in the names of the Advocates for the Plaintiff, Defendant and the Bank in a bank agreed within 14 days. In default of such agreement, the money shall be deposited in Court.
iii.) Upon compliance with (ii) above, there shall be stay of the order pending the hearing and determination of the appeal for a period of one (1) year unless the order is otherwise extended by this Court or the Court of Appeal.
iv.) Costs of the application in the appeal.
DATED and DELIVERED at NAIROBI this 25th day of OCTOBER 2022
D. S. MAJANJA
JUDGE