1.The applicant herein vide a Notice of Motion dated 28th June 2022 seeks the following orders;a)Spentb)Spentc)That there be a stay of execution of judgment and decree of the subordinate court file Iten SPMCC No. 6 of 2022 - Sammy Kipkoech Chirchir (Suing as the administrator and legal representative of the estate of Donald Kimutai Koech vs Vincent Kibiwott Rutto pending the hearing and determination of the appeal herein.d)That the applicant be allowed to avail a bank guarantee of the whole sum of kshs. 1,379,400/- from family bank, equity Bank or any other bank of good repute.e)That costs of this application be provided for.
2.The application is based on the grounds set out therein and the contents of the supporting affidavit.
3.The brief facts leading up to the application are that the applicant was the defendant in Iten SPMCC No. 6 of 2022 - Sammy Kipkoech (Suing as the administrator and legal representative of the estate of Donald Kimutai Koech v Vincent Kibiwott Rutto wherein judgment was entered in favour of the respondent. The applicant was held 100% liable for an accident that occurred on 28th January 2019 involving motor vehicle registration no. KBG 035L wherein the deceased lost his life. The trial court awarded the plaintiff a total of kshs. 1,379,400/- in damages.
4.The applicant being dissatisfied with the decision of the trial court filed a Memorandum of appeal dated 12th May 2022. The applicant proceeded to file the present application seeking stay of execution of the judgment delivered on 20th April 2022.
5.The applicant’s case is that the judgment herein is substantial and if the respondent proceeds with execution he stands to suffer irreparable loss. Further, he contended that the ability of the respondents to refund the decretal sum is unknown.
6.The applicant proposed a bank guarantee of kshs. 1,379,400/- as security and contended that unless stay is granted the appeal will be rendered nugatory. Further, that the respondent would not be prejudiced if the orders sought are granted. He maintained that the application was made in good faith and without delay.
7.The respondent opposed the application vide a replying affidavit dated 8th July 2022. It is their case that the application is fatally defective and is unmerited. According to the respondent the application does not meet the threshold set by Order 42 Rule 6 of the Civil Procedure Rules.
8.The respondent contends that the applicant has not explained what loss he will suffer. Further, that the application was filed 70 days after judgment and the delay is not explained. Further, that the intended appeal has no chance of success and the applicant has not asked for typed proceedings for purposes of the appeal. This goes to explain the tactful delay the applicant is employing. The respondent stated that the burden of proof as to whether he will not be able to refund the decretal is upon the applicant. they maintained that the application is frivolous and a delay tactic.
Issues for Determination
Whether the orders for stay of execution should be granted.
9.Stay of execution is guided by Order 42 Rule 6 of the Civil Procedure Rules which states as follows;
10.The upshot of the foregoing is that to determine whether the orders sought should be granted the court must establish;
- Whether the applicant will suffer substantial loss
- Whether the application was made without unreasonable delay
Whether the applicant will suffer substantial loss
11.I note that the applicant has expressed concerns as to whether the respondent will be able to refund the decretal sum. In National Industrial Credit Bank Limited v Aquinas Francis Wasike and Another (UR) C.A. 238/2005 when the court was confronted with a similar scenario, it held as follows;
12.The respondent ought to have filed an affidavit of means to satisfy the court that in the event the appeal succeeds he will be able to refund the decretal sum. Substantial loss was addressed in the case of James Wangalwa & Another v Agnes Naliaka Cheseto  eKLR where the court held that: -
13.In the absence of evidence that the respondent is in a position to refund the decretal sum in the event the appeal succeeds, I find that the applicant stands to suffer substantial loss if the orders sought are not granted.
Whether the application was made without unreasonable delay
14.The judgment the applicant seeks to appeal against was delivered on 20th April 2022. The application was filed on 30th June 2022. I take judicial notice of the fact that the applicant was granted 30 days stay of execution in the consolidated test suit that the intended appeal arose from before filing the present application. It is my view that the application overcame the unreasonable delay rule.
15.The applicant has offered a bank guarantee as security. The purpose of security has been discussed in various decisions over time. In Mwaura Karuga t/a Limit Enterprises v Kenya Bus Services Ltd & 4 Others  eKLR, it was said:
16.However, the appeal intended appears mainly pegged on the reasons that the trial Court’s assessment of damages were excessive. In my view, even if the Appellant succeeds in the appeal, that success will only reduce the amount of damages payable. In that regard, a part of the decretal sum will still be payable to the Respondent.
17.I therefore direct that Kshs.600,000/- be paid to the Respondent, and the balance of the decretal sum be secured by a bank guarantee. These should be done within 14 days from the date of this ruling.
18.The stay of execution is therefore granted upon the above two conditions.