1.What is before me is the appellant/applicant’s notice of motion dated April 20, 2022 seeking a stay of execution pending appeal. The application is premised on the supporting affidavit of Alice Nyamoita Atandi, the 1st appellant herein sworn on the April 20, 2022.
2.The main ground for the application is that the applicants are faced with imminent eviction from their home before their appeal is heard and determined.
3.The applicants filed a similar application in the lower court following an ex-parte judgment in favour of the respondents but the same was dismissed.
4.The application is opposed by the respondents through the replying affidavit of Mercy Malombo Sayo, the 1st respondent herein sworn on the June 4, 2022. In the said affidavit she depones that the applicants failed to convince the lower court to grant a stay of execution as they were unable to challenge the affidavit of service which indicated that they had been served with summons. She further depones that since the applicants’. application in the lower court was dismissed, the court cannot stay a negative order. It is her further averment that the application is untenable as applicants are not the registered owners of the suit property and that they are mere trespassers thereon.
5.The court directed that the application be canvased by way written submissions and both parties filed their submissions.
Issues for Determination
6.The sole issue for determination is whether a stay of execution pending appeal ought to be granted.
Analysis and Determination
7.I will determine the competence of the application in line with order 42 rule 6(1). The court needs to satisfy itself that the applicants have exhausted their rights before the trial court before approaching this court. The law reads:-
8.I understand the rule to dictate that the first port of call by an applicant for stay pending appeal is the trial court and that once it considers and determines the application then an aggrieved party has the liberty to approach this court and have the orders so issued set aside.
9.Put in the context of the matter before me, the applicants have approached this court for orders of stay because their application in the trial court was declined
10.In order to grant an order for stay of execution pending appeal I must be satisfied that the applicants have discharged their obligations imposed by order 42 rule 6 (1) and (2)of the Civil Procedure Rules.
11.The principles that guide the court in the exercise of its discretion to grant a stay of execution are now well settled. The substantive provision for grant of stay pending appeal is to be found under order 42 rule 6 of the Civil Procedure Rules.Order 42 rule 6 provides in part as follows: -6.(1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.(2)No order for stay of execution shall be made under sub-rule (1) unless—(a)the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and(b)such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.
14.In the instant suit the 1st applicant has mentioned in his affidavit that if a stay of execution is not granted, they will be displaced from their home thus they will suffer substantial loss and prejudice and their appeal will be rendered nugatory.
17.With regard to timeliness, the applicants first filed an application for stay in the lower court on September 27, 2021 following the entry of judgment against them on the same date. The said application was dismissed by the lower court vide its ruling delivered on April 7, 2022. Following the said dismissal, the applicants filed the instant application on April 20, 2022. It is therefore clear that the application was filed without any undue delay. With regard to the issue of security, the applicants have not offered any security for costs.
18.The respondents have strenuously opposed the application on the grounds that the applicants were served with summons to enter appearance. They have also pointed out that the applicants have failed to attach the order appealed from. Suffice is to say that the issue of whether or not the summons were properly served upon the applicants is the main subject of the appeal and it would not be proper for the court to make a determination on it at this early stage. As regards the extraction and attachment of the decree, this will no doubt be necessary when the record of appeal is filed but it cannot be the basis for declining an application for stay.
19.I have said enough to demonstrate that the applicants have met the conditions for stay and I am therefore inclined to grant a stay of execution on condition that the applicants deposit Kshs 100,000 as security for costs.Having granted the order for stay of execution, I do not find it necessary to delve into the issue of injunction pending appeal as granting both would be an overkill.The upshot is that the application is granted in terms of prayer 4 on condition that the applicant deposits a sum of Kshs 100,000 in court as security for costs within 21 days.The costs of the application shall be borne by the applicant.