REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL APPEAL NO.E784 OF 2021

CLASSIC SAFARIS LIMITED........................................................................................................APPELLANT

VERSUS

MASAI MARA(SOPA) LODGE LTD...................................................................................1^ST RESPONDENT

CONSOLIDATED TOURIST AND HOTEL INVESTMENT LTD (T/A SOPA TZ).....2^ND  RESPONDENT

RULING

1. The subject matter of this ruling is the motion dated 14^th December 2021 taken out by the appellant/applicant whereof it sought for an order for stay of execution of the ruling delivered by the trial court on 17.11.2021 pending the hearing and determination of the appeal.

2. The appellant filed the affidavit sworn by Carol Murimi in support of the motion.  When served, the respondents filed a replying affidavit to oppose the application.

3. I have considered the grounds stated on the face of the motion and the averments made in the rival affidavits.  I have further considered the rival oral submissions by learned counsels.  The substantive order sought in the aforesaid motion is an order for stay of execution of the trial court’s decision delivered on 17^th November 2021 pending appeal.

4. The appellant/applicant averred that on 17.11.2021 the trial court entered judgment on admission in favour of the respondents in the sum of USD32,792/50 (kshs.3,673,083/93).  The applicant has stated that it has preferred this appeal to challenge the decision and that unless an order for stay is granted the respondents may proceed to execute the judgment to the disadvantage of the appellant/applicant.

5. The applicant offered to comply with any conditions imposed by the court.  The applicant pointed out that the respondents are not in a financial position to make a refund if they are paid the decretal amount.

6. In response the respondents urged this court to dismiss the motion stating that the applicant failed to offer any form of security.  They also argued that they are in a financial position to make a refund of the decretal sum when required.  They further argued that no substantial loss has been shown by the appellant if the order for stay is denied.

7. The guiding principles in deciding such applications are well settled.  They are clearly set out under order 42 rule 6 of the Civil Procedure Rules and restated through past court decision.  First, such an application must be filed without unreasonable delay. In the matter before this court, the decision sought to be impugned was delivered on 17^th November 2021.  The instant application was filed on 14^th December 2021.  I am satisfied that the same was timeously filed.

8. The second principle is that an applicant must show the substantial loss it would suffer if the order for stay of execution is denied.  In this case the applicant avers that if the decretal sum is paid to the respondent it will be an herculean task to seek to recover the amount should the appeal turn successful.

9. The respondents merely deponed in the replying affidavit that they are in a financial position to provide a bank guarantee.  The moment the applicant made a claim which is to the effect that the respondents are incapable of refunding the decretal sum at the conclusion of the appeal, the respondents were enjoined to provide a comprehensive report on its asset or financial base to enable the court gauge the financial or material capability to make a refund.

10. I find that the respondents failed to discharge the burden of proof. I am therefore satisfied that the applicant has shown the financial ability.

11. The third and final principle is the sort of security which should be provided.  The applicant has stated that it is willing to abide by any of the conditions of this court imposed.  The respondents have beseeched this court to order the appellant/applicant to deposit the entire decretal sum or in the alternative to prove a bank guarantee of the entire decretal sum.   I can only state that the determination on the form of security required is a matter the court can decide on its own discretion.

12. In the end, I find the applicant’s motion dated 14.2.2021 to be meritorious.  It is allowed thus giving rise to issuance of the following orders:

i. An order for stay of execution of the trial court’s ruling/order made on 17^th November 2021 is granted pending appeal on condition that the appellant/applicant deposits the decretal sum in court within 45 days from the date hereof.  In default the order for stay shall automatically lapse and the respondent shall be at liberty to execute. 

ii. Costs of the motion to abide the outcome of the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 18^TH DAY

OF MARCH, 2022

.........................

J. K. SERGON

JUDGE

In the presence of:

............................................... for the Appellant

.............................................for the Respondent