1.This ruling is in respect to the Application dated March 10, 2023 wherein the applicant seeks, inter alia, orders to stay the execution of the Judgement/Decree dated December 13, 2022 in Keroka PMCC No 15 of 2018.
2.The Application is premised on the following grounds: -
3.The Respondent opposed the application through the Grounds of Opposition dated 24th March 2023 wherein he states that the application lacks merit and is calculated to delay the realization of the fruits of his decree. He further states that the Application is a replica of another application the Applicant filed before the trial court in Keroka SPMCC No. 15 of 2018 which is pending determination. The Respondent maintained that the present Application is therefore not properly instituted.
4.The Respondent further averred that, whereas he stood to suffer substantial loss in the event of the Application succeeding, the Applicant on the other hand would suffer no prejudice as he had already enjoyed 30 days stay granted by the trial court. He urged this court to dismiss the application so as to allow the legal process of execution to take place.
5.The application was canvassed by way of written submissions which I have considered. The main issue for determination is whether the Applicant has made out a case for the granting of orders for stay of execution pending appeal.
6.The law governing stay of execution pending Appeal is contained in Order 42 Rule 6 of the Civil Procedure Rules 2010, which states as follows:-
7.In the case of Halai & another v Thorton & Turpin (1963) Ltd  KLR 365 the Court of Appeal held thus:-
8.An applicant seeking to stay execution pending appeal must satisfy the following conditions:-
9.The court is at the same time enjoined to consider the rights of an Appellant to appeal if he is dissatisfied with the judgment and the rights and interest of a decree-holder who ought not to be precluded from enjoying the fruits of his judgment. This principle was aptly explained in the case of RWW v EKW  eKLR, as follows:-
10.It did not escape the attention of thiscourt that the Order against which the stay is sought emanated from a court of competent jurisdiction and that the Respondent herein, being the successful party, is well within his legal rights to execute the said judgment decree. A decree from a judgment debt becomes payable once judgment has been delivered by a trial court. In the case of Macharia t/a Macharia & Co Advocates v East African Standard, No 2 (2002) KLR 63, the court observed that:-
11.As a principle, therefore, stay of execution will only be granted upon satisfaction of the parameters set under Order 42 of the Civil Procedure Rules, the circumstances of a case and the court’s discretion. Thiscourt must make a decision that avoids injustice or hardship. (See the case of Shah v Mbogo and another (1967) EA 116).
12.Applying the above principles to this case, I note that the Applicant is apprehensive that the Respondent will not be able to refund the decretal amount should the appeal succeed. In Kenya Shell Limited v Kibiru & another  KLR 410 it was held that once the question as to the financial capability of a party has been raised, as was the case in this Application, it is incumbent upon the Respondent to prove to the court that he or she is not a person of straw and could therefore refund the decretal amount should the appeal not go his or her way. This evidential burden shifts to such a party and can only be discharged by them.
13.In ABN Amro Bank v Lemond Foods Limited Civil Application No.15 of 2002, the Court Appeal held that:-
14.I note, from the Grounds of Opposition, that the respondent merely denied being a person of straw and only stated that he had engaged the services of an advocate to defend the suit. This, in my view, is not sufficient to prove that he has the capacity to refund the decretal amount. I am therefore not persuaded that he discharged the burden of proof.
15.In the same vein, this court must also address itself to the intended appeal and consider whether the same is arguable and will be rendered nugatory should the said order not be granted. It is my view that if the respondent is allowed to execute the decree from the judgment of the trial court, the applicant will be highly prejudiced in the event that the decretal sum cannot be refunded or in the event that his property is attached and sold. The applicant stands to suffer more prejudice than the respondent herein.
18.From the above cited cases it is clear that an arguable appeal must not necessarily be one that will succeed but must raise substantive points of law worthy of consideration by a court on appeal. This means that a court is not to engage in an exercise of determining the merits of the Appeal at this as that is a reserve of the hearing of the Appeal, but must consider whether such grounds are substantial enough to warrant the attention of the court.
20.I note that the grounds of appeal listed in the Memorandum of Appeal are centered on issues of liability and quantum. Without going into the merits of the Appeal, it is my view that the Applicant raises arguable points of law in his Memorandum of Appeal and that the same ought to be given adequate consideration on appeal, which then means that the same will be rendered nugatory if this Application is disallowed.
21.On the issue of time, I note that the judgment in the trial court was delivered on December 13, 2022, the Memorandum of Appeal was filed on January 10, 2023 while the present Application was filed on March 10, 2023. It is my view that there was no inordinate delay in filing of the said Application and that the same was brought in a timely manner.
22.Order 42 Rule 6 provides that a party seeking stay of execution pending appeal must furnish security. The question for determination here is two-fold: whether the party seeking stay has furnished security and whether the same is adequate. It was the respondent’s contention at paragraph 7 of the Grounds of Opposition that the security furnished by the Applicant was insufficient given that the bank was a stranger to the proceedings.
24.In this case, the Applicant filed a Bank Guarantee dated 18th February 2022 from Family Bank. The said guarantee is valid for a duration of 12 months with an option for renewal. I note that this is not a renewed bank guarantee as the validity period has since lapsed. From my assessment of the said guarantee, I find it insufficient to cater for the decretal amount unless it is renewed, or an alternative security provided. I find guidance in the case of Butt v Rent Restriction Tribunal (1982) KLR 417, where the Court of Appeal held that:-
25.Considering the law and the circumstances of this case, I hold that the interests of justice will be best served by allowing the Application and granting an Order for stay of execution pending appeal, on condition that the Applicant fulfils the requirements of order 42 Rule 6 sub-rule (2b).
26.In the end, I find that the Application has merit and I therefore allow it but on the following conditions: -
27.It is so ordered.