The application before court for determination is the Notice of Motion dated 27th February 2025 brought by the appellant pursuant to the provisions of Order 42 Rule 6 (1) and (2) and Order 51 Rules 1 & 3 of the Civil Procedure Rules, Section 1A, 1B, 3 and 3A of the Civil Procedure Act Cap 21 Laws of Kenya.
The application seeks for an order of stay of execution and/or enforcement of the decree issued in favour of the Respondent pending hearing and determination of the appeal. The application also seeks that costs of the application be in the cause.
The application was supported by the averments in the Supporting Affidavit of Tobias Otieno sworn on 26th February 2025.
The application was opposed vide the grounds raised in the Replying Affidavit of Mellyne Atieno Ongango sworn on 13th March 2025.
The application was urged by way of oral submissions made on 18th March 2025.
Order 42 Rule 6(1) Civil Procedure Rules pursuant to which the application is brought provides that:
“ 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 of execution 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.”
Order 42 Rule 6(2) of the Civil Procedure Rules 2010 provides for the grounds upon which an order of stay of execution may be granted as follows:
“No order for stay of execution may be made under sub rule (1) unless-
- 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
- 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.”
Firstly, the court must be satisfied that the Applicant will suffer substantial loss if the order of stay of execution is not granted. Secondly, the application has to be brought without unreasonable delay and the applicant has to give security as the court orders for the due performance of such decree or order as may ultimately be binding on him.
The burden of proof lies with the Applicant to prove that substantial loss will result to him if the order sought is not granted. In the case of Charles Wahome Gethi vs Angela Wairimu Gethi [2008]eKLR the Court of Appeal held-
“...it is not enough for the Applicants to say that they live or reside on the suit land and that they will suffer substantial loss. The Applicants must go further and show the substantial loss that the applicants stand to suffer if the Respondent execute the decree in this suit against them”
The grounds upon which the present application was brought are that the judgement appealed against granted an eviction order against the appellant, that unless the execution thereof is stayed, the applicant will be denied an opportunity to ventilate his right of appeal. That the applicant stands to suffer substantial loss if the order sought is not granted. That it is in the interest of justice that the application be allowed so as to preserve the status quo otherwise success of the appeal will be rendered useless.
Counsel submitted on behalf of the applicant that the applicant was ready and willing to deposit security. That the applicant was still on the land and that only part of the premises had been demolished in execution. That if there is no order of stay, the Respondent will proceed with execution.
The Respondent’s case as stated in the Replying Affidavit is that he is the registered proprietor of the suit land namely; EAST KISUMU/BAR/1474. That the eviction was carried out on 10th March 2025 at 8. am. That the application has been overtaken by events. That the applicant has not satisfied the conditions for grant of an order of stay of execution of the decree. That the applicant has come to court with unclean hands since his agents have been felling trees on the land, burning charcoal and selling the same.
Counsel for the Respondent submitted that the applicant had already been evicted from the land. That allowing the application will amount to ordering the applicant to go back to the land and build which will not be proper. That the decree holder should not be deprived of the fruits of the judgment. That there has been delay in bringing the application. That although the Judgment was delivered in July 2024, it was not until execution was imminent that the applicant rushed to court.
I have considered the application, the grounds raised in opposition thereof and the submissions made. It is not in dispute that the judgment appealed against directed the eviction of the applicant from the suit land, that the judgment was delivered on 31st July 2024 and that the application herein was filed in February 2025, which was about 8 months later. The delay in filing the application was not explained. One of the conditions for grant of an order of stay of execution is that the application should be brought without unreasonable delay. I find the delay unreasonable. The Respondent has taken steps towards implementation of the judgement including execution of the decree.
It was not denied that execution of the decree had taken place. The only point of departure was that it was contended on behalf of the applicant that the demolition was only partial and that he was still on the land. This contention although a matter of fact, did not come from the applicant but from his Counsel by way of submissions. The applicant only stated that the Respondent had started the process of execution by obtaining orders for police assistance during the eviction process.
Counsel submitted on behalf of the applicant that there had been partial demolition of the applicant’s premises on the land and that the applicant was still on the land. The burden to prove that he was still on the land rested with him. No photographs or any evidence was availed that he was still on the land.
It is however not contested that the damages and costs awarded of Kshs.205,250 have not been recovered. In the interest of justice, I hereby grant an order of stay of execution in respect of recovery of the general damages and costs aforementioned pending hearing and determination of the appeal herein on condition that the applicant deposits in court the sum of Kshs.100,000/= as security within 45 days hereof failing which the stay of execution order herein granted shall lapse. Costs of the application to the Respondent.
Orders accordingly.
Ruling, dated and signed at Kisumu, read virtually this 24th day of April, 2025 through Microsoft Teams Online Application.
E. ASATI,
JUDGE.
In the presence of:
Maureen- Court Assistant.
No appearance for Appellant/Applicant.
Odhiambo B F for Respondent.