1.The application for consideration is Plaintiff’s Notice of Motion dated the 27th day of September, 2021 brought under Order 42 Rule 6(1) & (2) and of the Civil Procedure Rules, Sections 2A of the Civil Procedure Act and all other enabling provisions of law. The Application seeks the following orders THAT:a.Spent.b.Spent.c.There be stay of execution of the Court’s judgment/decree delivered on the 3rd December, 2020 pending the hearing and determination of the Defendant’s/Applicant’s appeal.d.Costs of this Application be provided for.
2.The application is based on the grounds on the face of it and supported by the Affidavit of one Mary Njambi Ndigwa, the sworn on the 27th September, 2021 and a Further Affidavit sworn on the 7th day of February, 2022.
3.The Application was opposed by the Plaintiff/Respondent vide a Replying Affidavit of David Ndwiga Gathendusworn on the 17th December, 2021.
The Applicant’s Case
4.It was the Applicant’s case that judgment was entered on the 3rd day of December, 2020 and the informal stay granted had since lapsed.
5.The Applicant had lodged an appeal against the entire judgment which said appeal they believed to have good chances of success.
6.In the absence of stay of execution pending the hearing and determination of the said appeal, the Applicant was apprehensive the Respondent would proceed to execute as they had already filed their bill of costs for assessment.
7.The Applicant averred that the appeal will be rendered nugatory thereby occasioning the Applicant substantial loss if the Respondent was to execute.
8.The Applicant further states that it was willing to comply with any reasonable conditions imposed by the Honourable Court.
9.The Applicant intimated that it was apprehensive that if the sum is paid, the Respondent will not be in a position to make good of the same upon a successful appeal.
10.The Applicant filed submissions on the 9th February, 2022 in support of the Application in which it submitted on the conditions for granting stay of execution pending appeal noting that it had shown sufficient cause.
11.The Applicant submitted that it stood to suffer substantial loss unless the orders sought are not granted. It submitted that the application’s intention is to maintain the status quo pending the hearing and determination of the appeal; that unless the same is maintained, the said appeal would be rendered nugatory.
13.Further, the Applicant submitted that the amount of Kshs. 1,582,000.00, costs and interest was substantial and in any event the same is paid and upon a successful appeal the Respondent is unable and/or unwell to refund the same, the Applicant will suffer substantial loss. In this regard, the Applicant invited the Court to consider the position in Century Oil Trading Company Ltd vs. Kenya Shell Limited Nairobi (Milimani) HCMCA No. 1561 of 2007 where it was held:
14.On whether the Application is brought without unreasonable delay, the Applicant submitted that it was filed eight (8) months after the impugned judgment and as at the time, the party and party bill of costs by the Respondent had not been filed and the decree had not been issued. It further submitted that it had been vigorously pursuing the typed proceedings so as to compile its record of appeal.
16.On offering security for performance of the decree, the Applicant submitted that it was amenable to the same as may be directed by the Honourable Court and urged that the Application be allowed.
17.The Respondent opposed the said application noting that pursuant to the judgment, the Applicant was granted 30 days stay of execution which had since lapsed and the move to seek further stay almost eight (8) months later amounted to inordinate delay.
18.The Respondent was of the averment that there was no proof that the appeal stood any chances of success and no prejudice would be suffered if the Applicant were to release the sums as the deponent was in full control of the Respondent and the same would be refunded on a successful appeal.
19.The Respondent further averred that it would be prejudiced in the event the application is allowed as realizing the fruit of the judgment would greatly help it wade through the tough economic times brought about by Covid-19 pandemic and no evidence had been presented to illustrate that the Respondent will not be in a comfortable position to refund the Applicant upon a successful appeal.
20.The Respondent urged that in any event the Honourable Court was inclined to grant the orders sought, it was amenable to having the Applicant deposit the entire decretal sum in court.
21.The Respondent did not however file submissions despite being given sufficient time to do so.
Analysis and Determination
22.I have rendered myself to the pleadings as well as submissions by Counsel for the Applicant in support to granting stay of execution pending appeal as well as the Respondent’s Replying Affidavit. I reiterate that the Respondent on its part did not have their submissions on record.
23.Order 42 Rule 6(2) of the Civil Procedure Act sets out the principles that the court should consider while deciding whether to grant Stay of Execution Pending Appeal. These are:-
24.On whether the Applicant will suffer substantial loss as the Respondent might be unable to refund the sums paid upon a successful appeal by the Applicant, the same ought to have been rebutted by evidence from the Respondent. See Michael Ntouthi Mitheu v Abraham Kivondo Musau  eKLR where it was stated:
25.The decretal sum of Kshs. 1,582,000.00 is a substantial amount and it was incumbent upon the Respondent to prove that it was in a position to refund the same in the event the Applicant was successful on appeal. In Rana Auto Selection Ltd v Lilian Osebe Moses  eKLR the Court stated:
26.In view of the foregoing, I am of the considered view that the Applicant stands to suffer substantial loss in the event of a successful appeal.
27.On the issue of inordinate delay, the Applicant admits that following the lapse of the 30 days stay of execution granted on the 3rd December, 2020, it filed the present application approximately eight (8) months after the initial stay had lapsed. It was the Applicant’s position that it had no reason to be apprehensive that the Respondent would proceed to execute as it was yet to have its party and party costs assessed. On its part, the Applicant followed up on the typed proceedings so as to put in the record of appeal.
28.I note that the Applicant’s Notice of Appeal was lodged on the 10th day of December, 2020 which was within time and the Applicant duly sought to be supplied with certified typed proceedings. I am alive to the principle that inordinate delay ought to be based on the circumstances of each case.
30.In view of the foregoing, I find that even though the delay on the part of the Applicant was inordinate, it is excusable for reasons fronted by the Applicant.
31.The next issue for consideration is the issue of security. It is true that under Order 42 rule 6 aforesaid, an Applicant is required to offer security for the due performance of the decree and the Court is entitled to take into account the fact that no such security has been offered in deciding an application thereunder. I agree with the position in Mwaura Karuga t/a Limit Enterprises vs. Kenya Bus Services Ltd & 4 Others  eKLR, where it was held that:
33.Of critical convergence with respect to the security to be offered by the Applicant is the position of the Court of Appeal in Nduhiu Gitahi vs. Warugongo  KLR 621; 1 KAR 100; [1988-92] 2 KAR 100 where the Court of Appeal expressed itself as follows:
34.Further, in the Rana Case (Supra) it was stated that:
35.The Applicant indicated that they were amenable to providing security for satisfaction of the decree as may be directed by the court. The same in the view of this court is a sign of good faith in its pursuit of an appeal.
36.For all the foregoing reasons, I am satisfied that the Application dated the 27th September, 2021 is merited and I make the following orders –a.That stay of execution of the decree herein is granted on condition that the Applicant shall deposit in court the full decretal sum of Kshs. 1,582,000.00 within 30 days from the date of this ruling.b.That in default of compliance with (a) the Application shall be deemed to have been dismissed with costs and the Respondent will be at liberty to execute.c.That the costs of the application are awarded to the Respondent in any event.
37.It is so ordered.