1. I have considered the application by the Appellant dated 30th January, 2025 which seeks a stay of the order of the trial/lower court made on even date for the committal of the Appellant to civil jail for 30 days.
2. The Appellant, pursuant to the said order was on the same day committed to serve 30 days in civil jail. He has appealed against that order and the substantive appeal is yet to be heard.
3. The grounds upon which the application is presented are that there is a commitment that has been made by the statutory manager of Xplico Insurance Company Limited, the Appellant’s erstwhile insurers, to liquidate part of the decree.
4. The Appellant urges that he stands to offer substantial loss if the application is not granted as he will serve the 30-day jail term which will render his appeal nugatory.
5. The Appellant further states that his application has been made timeously.
6. With regard to security, he states that the order from which he is appealing is not one that is quantified and that the depositing or furnishing of security is therefore not an issue for consideration at this stage.
7. The Respondent has resisted the application and states that the statutory manager of the insurance company is not a party to this suit and the suit before the trial court and that in any event, as Xplico is under statutory management pursuant to a moratorium that was declared a while ago, judgements and decrees, if any, entered and passed against the said insurance company cannot be enforced against the company.
8. The Respondent further asked the court to consider the fact that the judgment and decree pursuant to which the Appellant was committed to civil jail has remained unsatisfied since the year 2022.
9. The Respondent urges that the conditions for granting of stay have not been met by the Appellant and seeks that the orders sought be refused.
10. I have considered the application, the rival submissions and the record in its entirety. The issue for me to determine at this stage is whether the conditions for granting the orders sought have been demonstrated by the Appellant.
11. The conditions for the orders sought under Order 42 rule 6 of the Civil Procedure Rules are:
- That the Applicant must demonstrate that he stands to suffer substantial loss.
- That the application has been made without delay.
- That the Applicant has offered or is ready to offer security for performance of the decree.
12. With regard to the first two conditions, I do not find it difficult in reaching a finding that the Appellant has met or demonstrated the same. The Appellant filed the application without delay and I accept his argument that his appeal will be rendered nugatory if he is to serve the 30 days in jail. That in my view amounts to substantial loss as there will be no appeal to argue or pursue after the 30 days.
13. With regard to the ground of furnishing security, I do not agree with the Appellant that the order from which the appeal is preferred is one in respect of which security cannot be ordered or is not required. It is to be remembered that there is a decree that was passed by the trial court that has remained unsatisfied since 2022. There is no order of stay in respect of that decree and the order for committal was made in execution of the said decree.
14. That the means that staying the committal is in fact staying the execution of the decree, yet as I have said, there is no stay or other challenges to that decree.
15. Although the appeal herein seeks to upset the order of execution by committal to civil jail as had been ordered by the trial court, the decree will remain intact even if the appeal ultimately succeeds. There is therefore the need for the Appellant to furnish security for the performance of the decree, which, as I have observed, remains unchallenged and undisturbed. Noteworthy is the fact that the Appellant does not dispute that he is the judgment debtor and that he is indebted to the Respondent to the extent of that decree.
16. The Appellant’s argument that the statutory manager of Xplico has committed to settle part of the decree is obviously not a useful argument to the instant proceedings for 2 reasons;
i. The statutory manager is not a party to this suit and has not made the commitment in this matter or the one before the trial court and such is therefore mere hearsay.
ii. The judgment and decree were entered and passed against the Appellant in personam, to the exclusion of any other party.
17. The Application would then fail on the ground that the Appellant has failed to offer security for the performance of the decree.
18. However to give the Appellant a chance to pursue his appeal, I will allow the application conditionally, considering the age of decree, on the following terms:
There shall be a stay of execution of the order of committal to civil jail pending appeal on condition:
a) The Appellant deposits in court security of the sum Ksh.2,376,044/= within 7 days.
b) That the Appellant be released from jail only upon depositing the said amount in (a) above.
c) That in default of (a) above, the order of stay will automatically lapse.
d) Mention for further orders/directions on 20th February, 2025.
DELIVERED (virtually), DATED & SIGNED this 6th day of February, 2025.
JOE M. OMIDO
JUDGE.
FOR APPELLANT: Mr. Omondi.
FOR RESPONDENT: Mr. Abiero.
COURT ASSISTANT: Mr. Juma.