1.The applicant approached this court vide a notice of motion dated July 20, 2022 seeking the following orders;1.That the honourable court be pleased to certify this application as urgent and service be dispensed with in the first instance.2.That the honourable court be pleased to grant a stay of execution in Eldoret MCCC No 140 of 2020 pending the hearing and determination of this application.3.That the honourable court be pleased to grant a stay of execution in Eldoret MCCC No 140 of 2020 pending hearing and determination of the appeal.4.The costs of this application be in the cause.
2.The application is based on the grounds set out therein and the affidavit sworn in support of the same.
3.The brief facts underlying the case are that the appellant was the defendant in Eldoret Chief Magistrates’ Civil Suit No 140 of 2020 wherein the court delivered judgment on June 16, 2022 giving an award of Kshs 7,989,746.85/- together with costs and interests in favour of the respondent. The appellant being dissatisfied with the decision of the trial court filed the present appeal.
4.The appellant’s case is that there is a pending appeal and during the pendency and determination of the appeal, the respondent herein is likely to execute the decree at any time unless the court orders a stay of execution; that the appeal has a reasonable chance of success and if the orders sought are not granted the appeal shall be rendered nugatory. The appellant is ready to provide a bank guarantee as security. It maintained that it is in the interests of justice that the orders sought be granted.
5.The respondents opposed the application vide a replying affidavit dated July 26, 2022. The respondent’s case is that the said application is bad in law, abuse of the court process and fatally defective and the same should be dismissed in limine. The appellant through their amended Defence acknowledged being indebted to the respondent to a sum of Kshs 5,972,751.17/=. A copy of the amended defence was annexed as annexure SWW2. The same position was maintained by the appellant’s witness on their statement dated March 29, 2022.
6.Upon considering the pleadings, I have identified the issue for determination as;Whether stay of execution should be grantedOrder 42 rule 6(1) and (2) of the Civil Procedure Rules provides as follows:
7.The upshot of the foregoing is that an applicant for stay of execution of a decree or order pending appeal is required to satisfy the conditions set out in order 42 rule 6 (2), aforementioned being;(a)that substantial loss may result to the applicant unless the order is made,(b)that the application has been made without unreasonable delay, and(c)that such security as the court orders for the due performance of such decree or order as may ultimately be binding on the applicant has been given
9.In the present application, the applicant avers that the award is worth Kshs 7,989,746.85/- together with costs and interest. Whereas I acknowledge that this is a colossal sum, I take note that the applicant has not stated how it will suffer substantial loss if the stay is not granted. The applicant has only stated that the money will not be recoverable.
Whether the application has been made without undue delay
10.The Judgment from which the orders the applicant seeks to stay emanated was delivered on June 16, 2022. The present application was filed on July 27, 2022. It is my view that the application was filed timeously.
12.It does not escape the attention of the court that the appellant has admitted in its defence and in the witness statement of Maxwell Munyao that it owes the respondent Kshs 5,972,751.17. That being so, it is my view that the appeal will not be dealing with admitted debt. If so, then this admitted debt should be paid. I therefore allow the application on the condition that Kshs 5,972,751.17 admittedly owed to the respondent is paid within thirty (30) days from the date hereof failure to which the respondent is at liberty to execute. costs in the cause.