A. The Plaintiff’s Application
1.By a notice of motion dated February 17, 2020 expressed to be brought under sections 1A, 1B, 3 & 3A of the Civil Procedure Act (cap 21), order 42 rule 6 and order 51 rules 1 of the Civil Procedure Rules, 2010 (the Rules), and all other enabling provisions of the law, the plaintiff sought a stay of execution of the decree of this court dated February 4, 2020 together with all consequential orders pending the hearing and determination of an appeal to the Court of Appeal.
2.The said application was based upon the grounds set out on the face of the motion and the contents of the supporting affidavit sworn by the plaintiff on February 17, 2020 and the singular exhibit thereto. The plaintiff contended that being aggrieved by the said decree he had lodged a notice of appeal intimating his intention to appeal to the Court of Appeal against the entire decree. It was contended that the intended appeal had good prospects of success and that unless a stay of execution was granted the outcome of the appeal might be rendered nugatory should it be eventually successful. The plaintiff further contended that he was willing to abide by any conditions which the court may impose for due performance of the decree should his appeal ultimately fail.
B. The Defendants’ Response
3.The 1st and 2nd defendants filed a joint replying affidavit sworn on July 11, 2022 in opposition to the application. They contended that the application was brought in bad faith in order to deny them the fruits of their judgment. It was contended that the plaintiff had failed to demonstrate what substantial loss he might suffer if the decretal amount was paid. They further contended that the plaintiff had not demonstrated that the intended appeal shall be rendered nugatory in the event that a stay was not granted.
4.The 1st and 2nd defendants further contended that although a notice of appeal was filed more than 2 years ago the plaintiff had not demonstrated the steps he had taken to pursue his intended appeal. They prayed that in the event that the instant application is allowed then the plaintiff should be ordered to provide adequate security for due performance of the decree as required by law.
5.The 3rd and 4th defendants did not file any response to the application and neither did they participate in the application in any manner.
C. The Plaintiff’s Rejoinder
6.The plaintiff filed a further affidavit sworn on August 18, 2022 in reply to the 1st and 2nd defendants’ replying affidavit. The plaintiff stated that he had since filed a record of appeal before the Court of Appeal. He further stated that the decretal amount was a lot of money hence he may be forced to get into debt to pay it in the event the stay is not granted. He further contended that, in any event, the defendants had not filed any affidavit of means to demonstrate that they shall be in a position to refund the decretal amount in the event of the appeal being successful.
D. Directions on Submissions
7.When the application was listed for inter partes hearing it was directed that the same shall be canvassed through written submissions. Consequently, the parties were given timelines within which to file and exchange their respective submissions. The record shows that the plaintiff’s submissions were filed on August 22, 2022 whereas the 1st and 2nd defendants’ submissions were filed on October 19, 2022.
E. The Issue for Determination
8.The court has considered the notice of motion dated February 17, 2020, the replying affidavit in opposition thereto, as well as the plaintiff’s further affidavit. The court is of the opinion that the main question for determination is whether or not the plaintiff has satisfied the requirements for the grant of stay pending appeal.
F. Analysis and Determination
10.The legal requirements for the grant of a stay of execution of a decree are contained in order 42 rule 6(2), of the Rules which stipulates as follows:
12.So, what is the evidence before the court to demonstrate that the plaintiff shall suffer substantial loss if he paid the decretal amount? In the first place, the record shows that by the judgment dated February 4, 2020 the court dismissed the plaintiff’s suit with costs and awarded the 1st and 2nd defendants Kshs 100,000/= as general damages for trespass. The court has considered the plaintiff’s supporting affidavit sworn on February 17, 2020 on the issue of substantial loss. Apart from a bare statement that he shall suffer ‘irreparable loss’ which is ‘incapable of being compensated by damages’ there is absolutely no demonstration of the nature and extent of the alleged loss. It is really inconceivable that payment of costs and general damages of Kshs 100,000/= cannot be compensated in monetary terms. It was not averred in the supporting affidavit that the 1st and 2nd defendants were impecunious and that they would not be able to refund the decretal amount in the event of the appeal being successful. It was only when the defendants stated in their replying affidavit that substantial loss had not been demonstrated that the plaintiff stated in his further affidavit that the defendants had not filed an affidavit of means to demonstrate their ability to refund the decretal amount once paid. But how could the defendants do so when their financial ability had not been challenged in the application and supporting affidavit? The court is of the opinion that the plaintiff has failed to demonstrate that he stood to suffer substantial loss if he paid the decretal amount plus costs.
13.It is not sufficient for the plaintiff to assert that he might be forced to borrow some money or sell his assets in order to settle the decretal amount. That is an inconvenience which every debtor has to contend with. It is up to the debtor to choose the mode of setting his financial obligations and that burden should not be transferred to the creditor.
G. Conclusion and Disposal Order
14.The upshot of the foregoing is that the court finds and holds that the plaintiff has failed to satisfy the requirements for the grant of an order of stay pending appeal. Accordingly, the plaintiff’s notice of motion dated February 17, 2020 is hereby dismissed with costs to the 1st and 2nd defendants only.
It is so ordered.