Whether the Respondents/ Applicants have met the threshold for grant of stay of the forfeiture proceedings herein pending appeal.
Analysis and determination
7.The test for stay of proceedings is high and stringent. The general practice is that a stay of proceedings should not be granted unless the proceedings are shown to be frivolous or vexatious, or manifestly groundless and lacking in cause of action (See Halsbury’s Law of England, 4th Edition. Vol. 37 page 330 and 332). Order 42 Rule 6(1) and (2) of the Civil Procedure Rules sets out three conditions for grant of stay of proceedings pending appeal:-
8.The above conditions have been the subject of various decisions in various courts.
10.On the first limb of whether the Respondents have established a substantial loss, the Respondents have filed a draft Memorandum of Appeal enumerating 13 grounds of appeal against the ruling delivered by this court on 16th December 2021 in Misc. Application No. E022 of 2021. In that application the Respondents/Applicants had challenged the jurisdiction of the magistrate’s court to issue orders for investigation of their accounts. The Court of Appeal has already dealt with a similar issue in the case of Samuel Watatua & Another v Republic Nairobi Criminal Appeal No. 2 of 2013 (unreported) cited in the case of Ruth Wendy Wambui v Republic  eKLR and came to the conclusion that the orders issued by the trial magistrate were lawful. Accordingly, I find that the draft Memorandum of Appeal does not raise arguable grounds that would warrant an inference by this court that the appeal has high chances of success.
11.On the second limb on whether the Respondents willsuffer substantial loss should the orders for stay be declined, it is not enough for the Respondents to merely put forward assertions of substantial loss without documentary or any other evidence to support such contention. The court in exercising its discretion should be guided by adequate and proper evidence of substantial loss, unfortunately, no such evidence has been adduced by the Respondents. Moreover even were this court to hear the application for forfeiture and the Appeal succeeds no loss would be occasioned to the Applicants as the decision of the Court of Appeal would act to overturn that of this court and hence no forfeiture if any is ordered would take place.
12.On whether the application has been filed without undue delay, it is my finding that although the application was filed timeously this ground cannot stand alone to grant a stay of proceedings where the first two limbs of the test for stay have not been satisfied.
13.The court takes cognizance that the forfeiture proceedings were filed more than a year ago and that this court and the parties and their Advocates are enjoined by Sections 1A and 1B of the Civil Procedure Act to see their just, fair and expeditious disposal. To grant the orders sought would only occasion further delay. The application is therefore dismissed with costs to the Applicant/Respondent. It is so ordered.