1.Through the application dated 23rd November 2020, the applicant seeks the following orders: -1)Spent.2)Spent.3)That there be a stay of this suit, judgment and orders made on 24th September 2020 pending the hearing and final determination of Court of Appeal Civil Appeal No. E422 of 2020 filed by the Defendant against the Plaintiff herein.4)Costs be provided for.
2.The application is supported by the affidavit of Lilian Mugo and is based on the following grounds: -a.The Defendant being aggrieved by the judgment and orders made on 24/9/2020 has filed Civil Appeal No. E422/2020 at Court of Appeal Nairobi seeking to set-aside the said judgment and orders;b.The judgment/ orders made on 24/9/2020 excuse the Plaintiff from the duty to prove his case and instead transfer the duty and burden on the Defendant in violation of our adversarial system;c.The order for accounts is fueled by the incorrect finding that the Plaintiff had made an application for accounts and the Defendant frustrated the ensuing audit;d.The other tributary to the order for accounts is the finding that the Plaintiff was entitled to earn commission even after termination, which finding again is erroneous in the face of the written Agreement;e.The Honourable Court has narrated facts to credit the Plaintiff with good deeds and paint the Defendant in bad light;f.The Appeal is arguable and raise weighty questions of law, which ought to be heard by the Court of Appeal;g.The order for accounts is an unnecessary burden upon the parties and does not advance the case of the Plaintiff nor the Defendant;h.The Defendant is apprehensive that unless stay is granted, its right to a fair trial will be prejudiced;i.Unless stay is granted, the success of the said appeal will be defeated and rendered nugatory;j.The orders sought are necessary to preserve the suit, save costs and the limited judicial time; andk.The orders sought commend themselves in the unique circumstances of this case.
3.The respondent opposed the application through his replying affidavit dated 25th February 2021 wherein he states that the defendant filed the appeal in order to circumvent the court order on accounts. He further states that the court is yet to pronounce itself fully on the plaintiff’s claim as it only dealt with the issue of accounts and that the defendant therefore has no basis in law to challenge the preliminary decree. He contends that the determination of other prayers in the plaint was deferred until after the taking of accounts. He further states that the defendant did not show any sufficient cause for the granting of the orders of stay and that such stay will delay the final determination of the suit that had been pending for more than 14 years.
4.The application was canvassed by way of written submissions which I have considered. The main issue for determination is whether the court should grant an order of stay of execution pending appeal.
6.Further Order 42, rule 6(2) states: -
7.In an application of stay of execution pending appeal, the applicant needs to satisfy the conditions that the application was filed without undue delay, that he or he would suffer substantial loss and that he is ready and willing to abide by the order for security for the due performance of the decree.
8.In Butt vs. Rent Restriction Tribunal , the Court of Appeal stated that the power of the court to grant or refuse an application for a stay of execution is discretionary, and the discretion should be exercised in such a way as not to prevent an appeal. Secondly, the general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judge’s discretion. Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the applicant at the end of the proceedings. Finally, the court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances of the case and its unique requirements.
9.The applicant herein seeks to stay the judgment and orders made by this court on 24th September 2020 pending the hearing and final determination of Court of Appeal Civil Appeal No. E422 of 2020. According to the applicant, the court made an error with regard to accounts by blaming the defendant for frustrating the audit process. Counsel for the defendant submitted that the appeal will be rendered nugatory if the suit was allowed to proceed to conclusion
10.The respondent/plaintiff on the other hand stated that the applicant ought to have demonstrated that it will suffer substantial loss if the stay is not granted. According to the respondent, there was no threat of execution as the final orders of the court are yet to be granted.
13.A perusal of the court record reveals that the court issued orders for the taking of accounts of the business between the plaintiff and the defendant before making the final orders. I note that the applicant has not demonstrated that it will suffer substantial lose in the event stay is denied. The applicant needed to demonstrate how it would be irreparably affected if the application is not allowed.
16.In the instant case, the applicant contends that the orders issued by the court were not final in nature and that there is therefore no need of granting stay of execution pending appeal. The main purpose of stay of execution pending appeal is to preserve the subject matter of the appeal so as to avoid rendering the appeal nugatory. In making an order for stay of execution, the court has to balance the interest of both parties. In this case, I note that the orders sought to be stayed are not final and that there is therefore no threat of execution. I note that the court has not pronounced itself in finality in respect to the present suit and that there is therefore nothing before the court that it capable of being stayed.
17.I am not satisfied that the instant application is merited and I therefore dismiss it with costs to the respondent.
Dated, signed and delivered via Microsoft Teams at Nairobi this 16th day of December 2021 in view of the declaration of measures restricting court operations due to Covid-19 pandemic and in light of the directions issued by his Lordship, the Chief Justice on the 17th April 2020.W. A. OKWANYJUDGEIn the presence of: -Mr. Omondi for Ojiambo for Defendant/ApplicantNo appearance for Respondent.Court Assistant: Margaret