1.By a notice of motion dated May 6, 2022, the applicant filed an application for stay of execution pending appeal as well as an order of injunction restraining the respondent from evicting, demolishing, encroaching, surveying, sub-dividing, selling, disposing of, charging, or in any manner whatsoever, interfering with the suit land pending the hearing and determination of the intended appeal.
2.The application is hinged on the grounds set out in the notice of motion and the applicant’s supporting affidavit sworn on the May 6, 2022.
3.It is resisted by the respondents through the replying affidavit sworn by Joseph Hinga, the 1st respondent o his own behalf and on behalf of the 2nd and 3rd respondents.
4.The court directed that the application be prosecuted by way of written submissions and both parties filed their submissions.
Issues For Determination
5.The singular issue for determination is whether the applicant has met the conditions for stay pending appeal.
Analysis And Determination
6.The law on stay pending appeal is governed by the provisions of order 42 rule 6 of the Civil Procedure Rules which provides as follows:
7.The principles that guide the courts in granting an order of stay pending appeal are now well settled.
8.The first one is that the applicant must demonstrate that he shall suffer substantial loss unless a stay of execution is granted. In the instant case, the applicant has deponed at paragraph 9 of the supporting affidavit that he shall suffer substantial loss unless the application is allowed as he has been in possession of the suit land with his family since 1994 and he has constructed a house thereon. Considering the length of time the applicant and his family have occupied the suit land, eviction therefrom before the appeal is heard would undoubtedly result in substantial loss.
9.The second condition is that the application must be made without unreasonable delay. In the instant case, the application was made soon after the period of 90 days within which the applicant was ordered to vacate had expired. In my view there was no unreasonable as the applicant was given a grace period of 90 days which elapsed 7 days before the application was filed.
10.The third condition is that the applicant must be ready to furnish security for the performance of the decree. Although the applicants have not demonstrated their willingness to furnish security for costs, this does not preclude the court form imposing suitable terms with regard to the same.
11.In my view the applicant has met the conditions for stay and I am inclined to grant the same on condition that the applicant deposits the sum of Kshs 100,000/= in court as security for costs within 30 days, failing which the order for stay shall automatically lapse.
12.Having granted an order for stay, I do not find it necessary to delve into the prayer for injunction.
13.For the foregoing reasons, I find that the application has merit and I grant it and make the following orders:a.A stay of execution of the judgment delivered on March 2, 2022 is hereby granted pending appeal on condition that the applicant deposits the sum of Kshs 100,000/= in court as security for costs within 30 days, failing which the order for stay shall automatically lapse.b.The costs of the application shall be borne by the applicant.