1.The ruling is in respect to the application dated 30th September 2021 wherein the Appellant/Applicant seeks orders, inter alia, to stay the execution of the judgement and decree rendered on 4th day of June 2021 pending the hearing and determination of the appeal. The applicant’s advocates also seek leave to come on record for the applicant.
2.The application is supported by the affidavit of the applicant’s advocate Mr. Ochieng Jaoko and is based on the grounds that: -a)An adverse judgment was rendered on the 4th day of June 2021 against the Applicant.b)The Applicant elected to exercise her right to appeal following which a Memorandum of Appeal dated the 23rd day of June 2021 was filed on 2nd day of July 2021.c)For the avoidance of any doubt, the Applicant's appeal is alive.d)The Respondent has commenced the process of execution of the impugned judgement and decree.e)The Applicant believes she has an arguable appeal with high chances of success and that the same in danger of being purely academic unless this court grants stay orders as prayed herein.f)The aforesaid are arguable grounds which deserve a day in court in the appeal proceedings whereas the Applicant is desirous of the opportunity to put her case without the apprehension and anxiety posed by the imminent execution.g)The Applicant is ready and willing to abide by any such reasonable conditions as may be directed by the courth)It is trite law that the Respondent has the right to savour the fruits of his judgment; however, this right should be weighed against the Applicant's right to be heard and not to be toppled from the judgement seat.i)The Respondent will not suffer any prejudice should the court grant the orders sought herein given that he will have the opportunity to interrogate the appeal.j)The Applicant on the other hand will suffer irreparable loss and damage if stay orders are not issued in view of the execution.k)The Applicant's right to be heard is in danger of being affronted should the execution be allowed to go on unchallenged given that the appeal proceedings would be overtaken by events.
3.The respondent opposed the application through the replying affidavit of its advocate Mr. Paul Maingi Musyimi who avers that the Application is untenable, an abuse of the court process and is intended to unduly delay the settlement of the Decretal Sum. According to the respondent, the application does not meet the threshold set under Order 42 Rule 6 of the Civil Procedure Rules (CPR).
4.I have considered the application, the respondent’s response and the submissions presented by the parties herein. I find that the main issue for determination is whether the applicant is entitled to the orders sought.
5.The application for leave to come on record for a party, after judgment has been passed, is a requirement under Order 9 Rule 9 of the Civil Procedure Rules, 2010 (CPR) which provides that:
6.In the instant case, it was not disputed that the impugned judgement was rendered on the 4th day of June 2021. It was also not disputed that the applicant’s advocates were not on record prior to the entry of the impugned judgment. I find that the prayer, by the said advocates for leave to come on record is merited and I therefore allow it.
7.Turning to the prayer for stay of execution pending appeal, it is trite that the grant of stay of execution pending appeal is provided for under Order 42 Rule 6 of the Civil Procedure Rules which stipulates that: -
8.In the instant case the applicant appealed against the lower court’s verdict through the Memorandum of appeal dated 23rd day of June 2021. The impugned judgment was rendered on 4th June 2021 and the present application filed on 30th September 2021. I find that the application meets the first criteria condition under Order 42 Rule 6 of the Civil Procedure Rules that requires an applicant for stay of execution pending appeal to file the application without unreasonable delay.
9.On the issue of substantial loss, the applicant argued that the decretal sum is quite substantial and that the respondent may not be in a position to refund the same should the appellant succeed in the appeal. The Appellant added that it is ready and willing to provide any such security as may be imposed by the court, as she is a woman of means.
10.I am not persuaded that the application meets the condition on substantial loss, as the decretal sum of Kshs. 317,000 /- awarded in the judgement cannot, in the circumstances of this case, be said to be a colossal sum of money such that its payment can amount to substantial loss.
11.Be that as it may and taking cognizance of the position taken by courts that an appellant should not be denied the opportunity to pursue its appeal without the threat of execution just like the decree holder should enjoy the fruits of his judgment, I find that this calls for the court to balance the interests of both parties. In balancing the said interests, I will allow the application for stay of execution pending appeal in the following terms: -,a.The appellant shall within 30 days from the date of this ruling deposit the full decretal sum in an interest earning account with a banking institution of repute in the joint names of the advocates for both parties.b.In the event of failure to comply with the order in a) hereinabove, the stay orders shall lapse and/stand vacated without any reference to the court.c.The costs of this application shall abide the outcome of the appeal.