Introduction
1. Before court is a Notice of Motion dated 7th November, 2024 filed by the appellant in this matter, seeking the following orders;
a) Spent
b) Spent
c) That pending hearing and determination of this application and appeal, this honourable court be pleased to stay execution pending the hearing and determination of the Appellant/Applicant intended appeal to the Court of Appeal of Kenya.
d) That the cost of this application be in the cause.
1. Before court is a Notice of Motion dated 7th November, 2024 filed by the appellant in this matter, seeking the following orders;
a) Spent
b) Spent
c) That pending hearing and determination of this application and appeal, this honourable court be pleased to stay execution pending the hearing and determination of the Appellant/Applicant intended appeal to the Court of Appeal of Kenya.
d) That the cost of this application be in the cause.
2. The application is premised on the grounds on its face as well as the supporting affidavit sworn on 7th November, 2024 by Thomas Ondimo Dindi the appellant. The applicant’s case is that this court delivered its judgment on 20th June, 2024 and that on 26th June, 2024, the appellant filed Notice of Appeal. He further stated that he sought for certified copies of judgment and proceedings and that he has an arguable appeal with high chances of success. According to the applicant, he stood to suffer extreme prejudice if stay is not granted and that he had moved to court without unreasonable delay. He annexed a copy of the Notice of appeal and a letter requesting for judgment and typed proceedings.
3. The application was opposed. Michael Ojay Otieno the respondent, filed replying affidavit sworn on 16th December, 2024 opposing the application. He stated that the supporting affidavit was incurably defective as it had not been executed or signed by the deponent. He further stated that provisions cited by the applicant being Section 79G of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules were not applicable to the application. He also averred that the Notice of Appeal was incompetent. That there is inordinate delay and the applicant has not sought leave to extend the period to lodge his appeal hence there is no basis for grant of stay.
4. The application was disposed by way of written submissions. On record are the applicant’s submissions dated 24th January, 2024 and the respondent’s submissions dated 16th January, 2025.
Submissions
5. Counsel for the applicant submitted that the applicant stands the risk of eviction from the suit property if stay is not granted. Reliance was placed on the cases of Antoine Ndiaye v African Virtual University (2015) e KLR and RWW v EKW (2019 e KLR for the proposition that where substantial loss is demonstrated by the applicant, stay should be granted.
5. Counsel for the applicant submitted that the applicant stands the risk of eviction from the suit property if stay is not granted. Reliance was placed on the cases of Antoine Ndiaye v African Virtual University (2015) e KLR and RWW v EKW (2019 e KLR for the proposition that where substantial loss is demonstrated by the applicant, stay should be granted.
6. In response, counsel for the respondent submitted that Section 79G of the Civil Procedure Act relates to time for filing appeal from the subordinate court and does not apply to the instant application. They added that Order 42 Rule 6 of the Civil Procedure Rules applies where there is an existing appeal, yet in this case, there is no existing appeal before the Court of Appeal. Counsel argued that the Notice of Appeal was lodged on 15th August, 2024, which is almost two months after the judgment and that yet a Notice of appeal ought to be lodged in 14 days as per Rules 75 and 77 of the Court of Appeal Rules.
7. Counsel also relied on provisions of Order 42 Rule 6 of the Civil Procedure Rules and the case of Chege –vs- Chagora (Civil Appeal 265 of 2023) (2024) KEHC (KLR) (29 February) (Ruling) for the argument that to obtain stay of execution, an applicant must show that they stand to suffer substantial loss, which according to them, has not been demonstrated in this case. Counsel also argued that there was unreasonable delay as judgment was delivered in June 2024, yet the instant application was filed in November, 2024. It was further submitted for the respondent that no security had been offered by the applicant.
Analysis and determination
8. The court has carefully considered the application, the response thereto and the parties’ rival submissions. The only issue that arise for the court’s determination is whether the appellant deserves orders of stay of execution pending hearing and determination of an appeal before the Court of Appeal.
8. The court has carefully considered the application, the response thereto and the parties’ rival submissions. The only issue that arise for the court’s determination is whether the appellant deserves orders of stay of execution pending hearing and determination of an appeal before the Court of Appeal.
9. Order 42 Rule 6 of the Civil Procedure Rules grants this court the power to order stay of execution pending determination of an appeal before the Court of Appeal, and provides as follows;
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.
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.
10. Therefore, where an applicant demonstrates that they stand to suffer substantial loss and brings their application for stay pending appeal to court without inordinate delay, orders for stay of execution pending may be granted. The discretion to grant stay of execution pending appeal ought to be exercised judiciously by considering inter alia, whether the appeal would be rendered nugatory if stay is not granted and balancing the interests of the appellant as against the respondent’s interests in light of the interests of justice.
11. In the case of RWW v EKW [2019] e KLR, the court held that;
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. 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.
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. 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.
12. In the instant case, on 20th June 2024, this court delivered Judgment dismissing the appellant’s appeal with costs. On 10th July 2024, the appellant filed Notice of Appeal. As Rule 74 of the Court of Appeal Rules requires that a Notice of Appeal be filed within 14 days of delivery of the decision appealed against, it is clear that the Notice of Appeal herein having been filed after 20 days of the delivery of judgment without leave of court, was filed out of time and the same is incompetent hence there is no appeal filed against the judgment herein.
13. Besides, the judgment having been delivered in June 2024 and the application for stay having been made in November 2024, which is a period of over four months, in my view amounts to inordinate delay. Lastly and most importantly, in the judgment herein, the court dismissed the appeal and made no positive orders. I take the view that there can be no stay of a negative order including an order of dismissal, as there is nothing to be stayed.
14. In the circumstances and for the above reasons, I find and hold that the application dated 7th November 2024, lacks merit and the same is hereby dismissed with costs to the respondent.
15. It is so ordered.
DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THIS 3RD DAY OF APRIL, 2025 THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM
In the presence of;
Ms. Juma holding brief for Mr. Amasakha for the respondent
Mr. Momanyi holding brief for Mr. Manyoni for the appellant/applicant.
Court Assistant: M. Nguyai
In the presence of;
Ms. Juma holding brief for Mr. Amasakha for the respondent
Mr. Momanyi holding brief for Mr. Manyoni for the appellant/applicant.
Court Assistant: M. Nguyai