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UAM v MOA (Civil Appeal E033 of 2022) [2022] KEHC 15405 (KLR) (17 November 2022) (Ruling)
Neutral citation:
[2022] KEHC 15405 (KLR)
Republic of Kenya
Civil Appeal E033 of 2022
JR Karanja, J
November 17, 2022
(ARISING FROM DIVORCE CAUSE NO. KCDC 1/2020)
Between
UAM
Appellant
and
MOA
Respondent
Ruling
1.The notice of motion dated September 29, 2022 was filed by the applicant UAM through BM Ouma & Co Advocates seeking the basic order of stay of execution of the ruling delivered on September 7, 2022 in Busia Kadhis Court Divorce No KCDC/1/2020 on grounds specified in the body of the motion as fortified by the supporting affidavit deponed by the applicant on September 29, 2022. The application is anchored on Ss 1A, 3A and 65 of the Civil Procedure Act and order 42 rule 6 of the Civil Procedure Rules, 2010.
2.The notice of appeal and the memorandum of appeal dated September 16, 2022 and September 28, 2022 respectively were both filed on September 29, 2022 when this application was filed under certificate of urgency.The respondent, MOA , represented by Bogonko, Otanga & Co Advocates, filed a replying affidavit dated November 2, 2022, in opposition to the application.
3.The application was orally argued in court with both sides putting reliance on their respective supporting and replying affidavits.Learned counsels, Mr Ouma and Mr Otanga appeared for the applicant and respondent respectively and their rival submissions for and against the application were given due consideration by this court.
4.The basic issue arising for determination is whether the applicant has satisfied the conditions set out in rule 6 of order 42 for this court to exercise discretion in her favour and grant stay pending the hearing and determination of the intended appeal which was indeed filed but awaiting admission to hearing.At this juncture, the merits or demerits of the appeal are not factors for consideration. Therefore, the issues pertaining to the jurisdiction of the Kadhi’s Court to issue contested orders and/or the propriety or impropriety of the orders were irrelevant for the purposes of this application vis-à-vis whether or not the refusal to grant the stay order would render the appeal nugatory.
5.Under Order 42 rule 6 (2) of the Civil Procedure Rules, the substantive grounds for exercise of discretion in favour of an applicant are firstly, that substantial loss may result to the applicant unless stay is granted, secondly, that such security as the court orders for the due performance of such decree or order as may ultimately be binding upon an applicant has been given.The applicant herein stated in their submissions that she is not a person of straw thereby implying that she is ready and willing to provide any security cost that may be ordered by the court.Indeed, the fact was not disputed by the respondent. However, the applicant fell short of establishing the substantial loss she is likely to suffer if stay is not granted even if she is ready to provide security.
6.It was incumbent upon the applicant to demonstrate by necessary evidence or otherwise that she is likely to suffer substantial or irreparable loss should stay not be granted. It was not enough to merely allude to likelihood of suffering substantial loss without showing how so and in what manner.If payment of some monies to the respondent by the applicant as indicated in the impugned ruling is the expected loss, then that would not be substantial loss as the applicant has confirmed herein that she is not a person of straw thereby implying that she cannot feel any pinch of paying any money to the respondent. In any event, payment of the decretal amount to a decree holder would in itself not amount to substantial loss unless the amount is immoderate or exorbitant.
7.In sum, the applicant has failed to satisfy the necessary conditions for a grant of stay pending hearing and determination of the intended appeal.This application is therefore lacking in merit and is hereby dismissed with costs to the respondent.Ordered accordingly.
DATED AND DELIVERED THIS 17TH DAY OF NOVEMBER, 2022JR KARANJAHJUDGE
