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…APPELLANT AND WARUGONGO....................................................RESPONDENT (Application for stay of execution pending appeal from a judgment of the High Court at Mombasa, Bosire J) RULING February 17, 1988, Platt…

….……....RESPONDENT RULING The Memorandum of appeal was filed on 21st October, 2009 simultaneously with application for stay of execution.…

…That the applicant had since the delivery of the impugned judgment, filed several applications for stay including the one for review of the orders for conditional stay granted by this Court. 8.…

…The power of the Court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal. 2.…

…The impugned decision in the present matter was not a determination of the Applicant's substantive application for stay.…

…This court is of the view that an application for stay pending appeal derives its character and legal foundation from the appeal which it seeks to protect.…

…He avers that it is after the said proclamation that the Applicant/Appellant approached this court with the said application for stay of execution pending appeal.…

…He avers that the Applicant has not fulfilled all the three ambits required for an application for stay of execution pending appeal to be granted.…

…First, that the applicant is aggrieved by the decision of the learned magistrate dismissing the applicant’s application for stay of execution and setting aside of the default judgment entered against the applicant for failure…

…Secondly, that upon dismissal of the application for stay, Fantasy Auctioneers who the respondent had earlier instructed to recover the decretal sum, which according to the respondent’s replying affidavit filed herein and…

…This application ought to be brought under Order 42 Rule 6 which governs applications for stay of execution and provides as follows: 6.…

…Indeed, to grant or refuse an application for stay of execution pending appeal is discretionary.…

…It is also not in dispute that the Applicant has filed a similar application for stay of execution in the Court of Appeal and which is now pending directions.…

…It is also not in dispute that the Applicant has filed a similar application for stay of execution in the Court of Appeal and which is now pending directions.…

…Khaduli Advocate in which it was deponed inter alia, that the application for stay of execution was filed after the Bill of Costs had been filed; that the respondent had a right to enjoy the fruits of her ruling and judgment…

…This being an application for stay of execution of judgment pending appeal, it is governed by the provisions of Order 42 Rule 6 of the Civil Procedure Rules.…

…The court found the reasons advanced by the Appellants in their application for stay not plausible. The Appeal 10.…

…In note that the gist of the Appellant’s application for stay of execution is that they were not served with the summons and pleadings in the primary suit before the trial court.…

…for stay made pursuant to Order 42 Rule 6.…

…The order the applicant seeks to stay is an order dismissing his application for stay. This is a negative order.…

…(Being an application for stay of execution pursuant to the Judgment, Decree and Order of the Hon. M. N. Olonyi in the Magistrate Court at Tamu in Civil Case No. E133 of 2023 (Consolidated with Nos.…

…What is before me is an application for stay of execution of decree in Tamu SPM MCCE No. E133 of 2023 consolidated with E132, E134 and E131 of 2023.…

…I have considered the application for stay pending appeal, the reply filed by the Respondents as well as the written submissions filed by the parties. 7.…

…All the court has to determine is whether the Application for stay is merited. 9.…

…They further argued that this application is meant to circumvent the appeal and application for the stay before court of appeal, he further contends that this court is functus officio and that the application be dismissed…

…Also that application for stay was meant to scuttle the proceedings herein and was taken after the parties had taken directions on the hearing of this application. 7.…

…The application for stay of execution herein is made under Order 42 Rule 6(2) of the Civil Procedure Rules, 2010.…

…It is therefore substantial loss that has to be prevented in granting an application for stay of execution pending appeal.…

…THAT the learned Magistrate erred in law in ruling that the application for stay of execution was made in the wrong court.…

…In their application for stay of execution, they filed a copy of the moratorium.…

…It was further averred that the Appellants have not offered security, which is a prerequisite for an application for stay of execution.…

…The Court of Appeal set out the factors to be considered in an application for stay of execution pending appeal in the Butt v Rent Restriction Tribunal [1982] KLR 417, as follows: 1.…

…Whether the application for stay of execution is merited. Whether the conditions for stay of execution have been satisfactorily met. Whether this is a suitable case for court to exercise its inherent powers.…

…The issue for determination are whether the preliminary objection has merit - and if not whether the application for stay of execution is merited.…

…(d) The court in exercising the discretion whether to grant (or) refuse an application for stay will consider the special circumstances of the cases and unique requirements. 9.…

…E032 of 2023 Aron Mutinda Musau vs Monarch Insurance Company Limited prompting it to file the instant application for stay of execution pending appeal. 12.…