1.This is an application by way of Notice of Motion dated 14th July, 2021 and comes out as follows;d.That this application be certified urgent and service be dispensed with in the first instance.e.That the court be pleased to order a stay of execution in Nyeri CM ELRC 79 of 2019 pending the hearing and determination of the Applicant’s appeal.f.That the costs of this application be provided for.
2.It is in part grounded thus;viii.That the Applicant has appealed against the whole judgment against them delivered on 10th May, 2021 in Nyeri CM ELRC 79 of 2019.ix.The Applicant is likely to suffer irreparable loss if stay of execution is not granted.x.The Applicant is ready to comply with any orders as may be directed by the Honourable Court.xi.The Applicant’s appeal has high chances of success.xii.The Applicant may apply for the execution any time.
3.The Respondent in a Replying Affidavit sworn on July 19, 2021 faults the application for being an abuse of the process of court besides being out of form. This is as follows;3.That the said Application is fatally and incurably defective, misconceived, scandalous, frivolous, vexatious, and is otherwise an abuse of the process of this Honourable court.4.That I have been advised by my Advocates on record, which advise I verily believe to be true, that the Applicant has not annexed a certified copy of the Decree in which it is seeking a stay of its execution.
4.The Claimant/Respondent in defence further argues that there is no threat of execution and therefore the application becomes premature in toto.
5.Further, a discernment of the draft memorandum of Appeal does not disclose an arguable appeal with a high probability of success as the determination of the learned magistrate was concrete, apt and point on.
6.Other failures of the application come out thus,
- The applicant has not annexed a copy of the letter requesting for certified copies of the typed proceedings as a demonstration of the desire to appeal.
- That the orders sought can only issue if the application is made without unreasonable delay.
- The applicant has not adduced evidence of substantial loss in the event of non-grant.
- The applicant has not offered any security as is required of the law on stay of execution.
7.The Claimant/Respondent’s further case is that the Applicant has failed to demonstrate what substantial or irreparable loss may result to it unless the orders of stay are granted or what prejudice it is likely to suffer or how its appeal may be rendered nugatory.
8.Further, the application is intended to curtail and stall progression in the matter and therefore deny him the fruits of judgment. Again, there is no demonstration, or at all, of his pecuniary status or being a man of straw and this remains a mere statement and allegation. It is conjecture.
9.The Applicant/Respondent in his written submissions dated 8th December, 2021 submits a case of having met the threshold for issue of stay of execution. It is his case that he has demonstrated a case of substantial loss, expediency in making the application and has demonstrated an arguable appeal.
11.The Respondent written submissions are geared to a dismissal of the application. It is their argument that it fails to meet the threshold for such grant of stay of execution, the substantial loss and security for due performance of the decree.
13.The Appellant/Applicant’s case is lost on a test of preponderance of evidence. She has not demonstrated a case of the appeal being rendered nugatory as is required of such situations. She has not demonstrated that the Claimant/Respondent is a pauper and therefore not capable of reimbursements, if at all, on the success of the appeal.
14.I agree with the Respondent. No diligence in the prosecution of the appeal is demonstrated by the Applicant. Again, the Applicant has not met the threshold for issue of the orders sought.
15.I am therefore inclined to dismiss the application with orders that each party bears their costs.