1.The application before me is the appellant’s notice of motion dated July 28, 2022. The appellant/applicant is seeking the following orders:-a.that this court be pleased to grant a stay of execution of the judgment dated July 5, 2022 and delivered on July 8, 2022 pending hearing and determination of the intended appeal herein.b.that costs of the application be provided for.
2.The application is supported by the supporting affidavit of one Khatau Mahmood, the appellant’s office administrator, sworn on July 28, 2022. Annexed to the affidavit is a copy of the lower court’s judgment dated July 5, 2022 and shown to have been delivered by G Kiage – SRM at Mombasa on July 8, 2022 in Mombasa CMC-ELR Case No 1004 of 2019. It would appear as though the lower court’s decree had not been extracted as at the time the application for stay of execution was filed, as none is annexed to the affidavit sworn in support of the application.
3.The order for stay of execution pending appeal is sought on the basis of an appeal that is shown to have been instituted vide a memorandum of appeal filed in this court on July 14, 2022. Although rule 8(1) provides that a memorandum of appeal shall be accompanied by copies of the proceedings, all documentary evidence relied on and a copy of the judgment, none of the said documents, except the lower court’s judgment, was filed together with the memorandum of appeal. This court has, therefore, not seen the lower court’s proceedings and documentary evidence produced at the trial by the parties herein.
4.It is improper for a party to file an application for stay of execution pending appeal on the basis of a bare memorandum of appeal, as an appellate court must be seized of all the matters of fact regarding the subject trial before it can be called upon to determine an application based on the appeal.
5.Execution of a court’s decree is a lawful process that is legitimately taken out by a successful litigant, and a party seeking stay of the same must demonstrate that the stay sought is, indeed, deserved.
7.It is clear from the foregoing that an applicant seeking a stay of execution pending appeal must satisfy the court that substantial loss will result to the applicant unless the stay sought is granted. This can only be done on the basis of material placed before the court by the party seeking stay. It is not enough for an applicant to allege that the respondent will not be able to refund the decretal sum if the appeal succeeds. The burden is upon the applicant to prove that the respondent will not be able to refund any sum paid to him in satisfaction of the decree.
11.In the absence of any evidence of substantial loss that the appellant/applicant is likely to suffer if the orders of stay sought are not granted, the application dated July 28, 2022 must fail, and is hereby dismissed with costs.