Bor (Suing on behalf of the estate of Philip Kibor (Deceased)) v Kaguru (Environment & Land Case 359 of 2015)  KEELC 15223 (KLR) (6 December 2022) (Ruling)
Neutral citation:  KEELC 15223 (KLR)
Republic of Kenya
Environment & Land Case 359 of 2015
JM Onyango, J
December 6, 2022
Sosten Kipsongok Bor
Suing on behalf of the estate of Philip Kibor (Deceased)
David Waithaka Kaguru
1.The defendant moved the court vide a notice of motion dated July 4, 2022 seeking an order of stay of execution pending appeal under order 42 rule 6 (1) and (2) of the Civil Procedure Rules. The application is premised on the grounds stated on the face thereof and the applicant’s supporting affidavit sworn on 4th July and a supplementary affidavit sworn on September 19, 2022.
2.The application is opposed by the plaintiff through his grounds of opposition dated August 22, 2022 and his replying affidavit sworn on even date in which he depones that the applicant has not met the threshold of exec for grant of an order for stay of execution pending appeal as envisaged under order 42 rules 1 and 2 of the Civil Procedure Rules.
3.The application was canvassed by way of written submissions and both parties filed their submissions.
Issues For Determination
4.The only issue for determination is whether the applicant has met the conditions for stay pending appeal.
Analysis and Determination
5.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.In the case of MOM Amin Transporters Limited & Another v Alexander Ndung’u Mbugua & 2 Others  eKLR the court held that all the three conditions had to be met and satisfied simultaneously in order for the court to exercise its discretion and grant a stay of execution. The court stated as follows:-
7.Furthermore, in the case of Equity Bank Limited v Taiga Adams Company Limited  eKLR Mutungi J stated as follows:
8.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. In the case of Wangalawa & Another v Agnes Naliaka Cheseto (2012) eKLR the court observed as follows:
9.Substantial loss has been defined to be the kind of a loss that is assessed by the totality of the consequences awaiting the applicant if stay is not granted. In Dawie Chebutal Rotich & 2 Others v Emirates Airlines, Civil Case No 368 of 2001, Mutunga J defined substantial loss as follows:
10.In the instant case the applicant has stated that he is in occupation of the suit property since 1977 and if he is evicted, the substratum of the appeal shall be destroyed and the appeal shall be rendered nugatory, not to mention that the applicant would suffer substantial loss.
11.The respondent has not controverted the applicant’s averment with regard to occupation of the suit property. It is therefore not in dispute that if the application is not granted, the appeal shall be rendered nugatory.
12.The application was filed in July before the expiry of the stay order issued after delivery of judgment and therefore it was filed without any undue delay.
13.Although the applicant did not offer any security for costs, he averred that he would not part with possession before the appeal is heard and determined.
14.All in all, I am persuaded that the applicant has satisfied the conditions laid down in order 42 rules 1 and 2 of the Civil Procedure Rules. Consequently. I grant the application condition that the applicant deposits Kshs 100,000 in court as security for costs within 30 days failing, which the order for stay shall automatically lapse.
15.The costs of the application shall be borne by the applicant.
DATED AT ELDORET THIS 6TH DAY OF DECEMBER 2022J M ONYANGOJUDGE