1.The motion dated September 12, 2022 by Josephine Kawira (hereafter the Applicant) seeks inter alia that pending the hearing and determination of the appeal herein there be an order to stay execution of the judgment in Nairobi Milimani Small Claims Court Case No E109 of 2021 (hereafter the lower court suit) in favour of the Redeemed Gospel Church (hereafter the Respondent). The motion is expressed to be brought under Section 3A of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules, inter alia, on grounds on the face of the motion as amplified in the supporting sworn by Applicant.
2.To the effect that being aggrieved and dissatisfied with the judgment of the lower court delivered on September 07, 2022, the Applicant has preferred an appeal that has an overwhelming chance of success, and which will be rendered nugatory unless the motion is allowed. That the Respondent will not hesitate to proceed with execution unless this court grants stay of execution pending hearing and determination of the appeal. She concludes by asserting that she stands to suffer great loss if execution proceeds before the hearing of the appeal.
3.The Respondent opposes the motion by way of grounds of opposition dated 30.09.2022. It takes issue with the motion on grounds that the application is incompetent, frivolous, vexatious, lacks merit and is a gross abuse of the court process; that the Applicant has not offered any security as required by Order 42 of the Civil Procedure Rules; that the Applicant should deposit the judgment sum of Kshs 360,000/= into a joint escrow bank account in the names of both advocates as a condition for stay of execution; and that no prejudice will be occasioned to the Applicant in that event.
4.The motion was canvassed by way of written submissions. Counsel for the Applicant anchored his submissions on the provisions of Order 42 Rule 6 of the Civil Procedure Rules and Section 1A of the Civil Procedure Act on the prerequisites to be fulfilled in an application of this nature. Addressing the court on the issue of substantial loss, counsel reiterated the material in the supporting affidavit and called to aid the decision in James Wangalwa & Another v Agnes Naliaka Cheseto  eKLR to contend that the Applicant lacks the means to furnish the decretal sum while she has a meritorious appeal that ought to be ventilated.
5.It was argued that the Respondent by electing to file grounds of opposition in response to the motion has failed to controvert the averments in the Applicant’s affidavit concerning her apprehension that if any monies are paid out in satisfaction of the decree, the Respondent will not be unable to refund the same having failed to disclose its means to refund the decretal sum should the appeal succeed. The decision in Amal Hauliers Limited v Abdulnasir Abukar Hassan  eKLR was called to aid. Concerning whether the motion was filed without unreasonable delay, counsel cited the decision in Utalii Transport Company Limited & 3 Others v NIC Bank Limited & Another  eKLR to submit that instant motion was filed exactly seven (7) days upon the delivery of the impugned decision.
6.Regarding security, it was argued that despite the court’s directions for parties to consider compromising on the nature of security to be provided, the Respondent had spurned efforts in that regard; that the Applicant being currently unemployed had no means to satisfy the decretal amount. It was further asserted that no prejudice will be suffered by the Respondent should stay be granted. The court was thus urged to allow the motion in the interest of justice.
7.On the part of the Respondent, in summarily addressing the motion, counsel relied on this court’s decision in Jubilee Insurance Co Ltd v Nyamu (Civil Appeal E576 of 2021)  KEHC 10069 (KLR) (Civ) and the decision in Jamii Bora Bank Limited & Another v Samuel Wambugu Ndirangu  eKLR to contend that the Applicant has not offered any form of security including deposit of the decretal amount in a joint interest earning account. Hence, the motion lacks merit and ought to be dismissed with costs.
8.The court has considered the material canvassed in respect of the motion. This court notes that from the Applicant’s affidavit material and submissions that she has prematurely attempted to address issues relating to the substantive appeal, which are a preserve of the appellate court. At this stage the court is not concerned with the merits of the appeal.
9.It is apt at this juncture to address a preliminary concern raised in the submissions of the Applicant. Counsel argued that the Respondent in electing to file grounds of opposition in response to the motion had failed to controvert the averments in the Applicant’s affidavit. Order 51 Rule 14 (1) of the Civil Procedure Rules prescribes the different ways of opposing a motion presented before the High Court as follows; -
11.Hence the court takes the view regarding the Respondent’s election that while it was within its rights, the election confined the opposition to issues of law only, not facts. The granting of stay pending appeal involves judicial discretion fettered by certain conditions usually hinged upon factual material. However, the absence of a replying affidavit by the adverse party does not necessarily give free rein to the Applicant.
12.Moving on to the substantive question for determination, it is trite the power of the court to grant stay of execution of a decree pending appeal is discretionary, however the discretion should be exercised judicially. See Butt v Rent Restriction Tribunal  KLR 417. The Applicant’s prayer for stay of execution pending appeal, is brought pursuant to Order 42 Rule 6 of the Civil Procedure Rules which provides that:
13.The cornerstone consideration in the exercise of the discretion is whether the Applicant has demonstrated the likelihood of suffering substantial loss if stay is denied. One of the most enduring legal authorities on the issue of substantial loss is the case of Kenya Shell Ltd v Kibiru & Another  KLR 410. The principles enunciated in this authority have been applied in countless decisions of the superior courts including some of those cited by the parties in their submissions. Holdings 2, 3 and 4 of the Kenya Shell Ltd Case are especially pertinent. These are that:
14.The decision of Platt Ag JA, in the Kenya Shell Ltd Case, in my humble view sets out two (2) different circumstances when substantial loss could arise, and therefore giving context to the 4th holding above. Platt Ag JA (as he then was) stated inter alia that:
15.The learned Judge continued to observe that: -
16.Earlier on, Hancox JA in his ruling observed that:
17.The Applicant has claimed that her appeal has an overwhelming chance of success and the same will be rendered nugatory unless the motion is allowed. The Applicant was duty bound to demonstrate through her affidavit depositions how substantial loss would arise in this instance, by showing, either that the Respondent would be unable to refund any monies paid to it under the decree, or that payments in satisfaction of the decree would occasion difficulty to the Applicant. She has not discharged this duty by her affidavit and only belatedly raised these matters in her submissions.
18.The question of substantial loss is a matter of fact that ought to have been contained in the affidavit sworn in support of the motion. Raising these matters in submissions appears to be an afterthought effectively denying the Respondent a chance of rebuttal. Submissions cannot be used as a substitute for affidavit evidence as attempted here. As stated in the Shell case, without a demonstration of substantial loss, it would be rare that any other event would render the appeal nugatory and to justify keeping the decree holder out of his money.
19.It is not enough for the Applicant to causally aver that execution will render the appeal nugatory without demonstrating how that will arise. The Respondent is entitled to commence the lawful process of execution and will not be barred by the court save where a lawful cause is demonstrated. And as held in the Shell case, substantial loss in its various forms, is the cornerstone of the jurisdiction for granting stay. That is what must be prevented. Therefore, the court is not persuaded that the Applicant has established the likelihood of substantial loss and hence of the appeal being rendered nugatory. Without this evidence, it is difficult to see why the execution process should be stayed. In the circumstances, the motion dated September 12, 2022 is devoid of merit and is hereby dismissed with costs to the Respondent.