1.Before me for determination is the Applicant’s Notice of Motion dated 24/11/2022 and filed in Court on 1/12/2022 seeking the following orders: -
2.The application is premised on the grounds therein and is further supported by the affidavit sworn by Abel Kiplimo Kiprop, the Applicant on 24/11/2022.
The Applicant’s case
3.The Applicant case is that on 28/10/2022, judgment was delivered in favour of the Respondent in Eldoret SCCC No.150 of 2022 where by the Respondent was awarded Kshs.200,000/= as general damages, Kshs.6,000 as special damages plus costs and interests thereon. Liability was assessed at 80%: 20% in favour of the Respondent.
4.Aggrieved by the said judgment the Applicant has since lodged an appeal against the findings on both liability and quantum.
5.The Applicant contended that the financial ability is unknown and thus in the event the appeal succeeds then the likelihood of the Respondent to refund the decretal amount is unknown. The Applicant is apprehensive that he stands to suffer substantial loss and that the appeal is likely to be rendered nugatory if stay orders are not issued.
6.The Applicant is willing and ready to offer security in the form of a Bank Guarantee issued by Family Bank Limited.
7.The application is opposed. The Respondent filed a Replying Affidavit dated 6th December, 2022, in which he deposed that this instant application has been made in bad faith and with the view of denying him from enjoying the fruits of his judgment.
8.The Respondent contends that the mere filing of an appeal does warrant the issuance of orders of stay of execution.
9.The Respondent maintains that the Applicant has not demonstrated to this Court the substantial harm he is likely suffer if stay orders are not granted.
10.The Respondent further deposed that the averments by the Applicant that he would not be able recover the decretal amount in the event that the appeal succeeds are unsubstantiated.
11.The Respondent is agreeable to the security being provided by the Applicant in the form of a Bank Guarantee. The Respondent is apprehensive that he has no control over the agreement that was entered into between the bank and the Applicant herein.
12.The Respondent contends that from a cursory look, the Memorandum of Appeal does not show any high chance of success and thus issuance of the orders sought will only be an exercise in futility.
13.The Respondent maintains that in event that this Court decides to grant the Applicant orders of stay of execution, then the Applicant should pay three-quarters of the decretal amount.
14.The Respondent urge the Court to dismiss this instant application with costs.
It is so ordered.
15.I have carefully considered the application for stay, grounds thereof, supporting affidavit and the response thereof. The main issue for determination is whether the Applicant has demonstrated that the orders of stay of execution pending appeal are merited.
16.The principles guiding the grant of a stay of execution pending appeal are well settled. These principles are provided for under Order 42 rule 6(1) of the Civil Procedure Rules 2010 which stipulates as follows: -
17.No order for stay of execution shall be made under sub-rule (1) unless—
18.The power of the court to grant stay of execution pending appeal is a discretionary.
20.Further to the above, stay may only be granted for sufficient cause and that the Court in deciding whether or not to grant the stay and that in light of the overriding objective stipulated in sections 1A and 1B of the Civil Procedure Act, the Court is no longer limited to the foregoing provisions. The courts are now enjoined to give effect to the overriding objective in the exercise of its powers under the Civil Procedure Act or in the interpretation of any of its provisions.
21.Under section 1B some of the aims of the said objective are; the just determination of the proceedings; the efficient disposal of the business of the Court; the efficient use of the available judicial and administrative resources; and the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties.
22.Therefore, an applicant for stay of execution of a decree or order pending appeal is obliged to satisfy the conditions set out in Order 42 Rule 6(2), aforementioned: namely (a) that substantial loss may result to the applicant unless the order is made, (b) that the application has been made without unreasonable delay, and (c) that such security as the court orders for the due performance of such decree or order as may ultimately be binding on the Applicant has been given.
24.The Applicant herein is apprehensive that the Respondent would not be a position to refund the decretal amount in the event that the appeal succeeds and thus he would suffer substantial loss. Unfortunately, the Respondent save for mentioning that the Applicant’s claims regarding the refund of the decretal amounts were unsubstantiated, he did not make an effort to show that he would be a position refund the said amount in the event that the appeal succeeds. The Applicant on the other hand is willing and ready to furnish the court security in the form of a Bank Guarantee issued by Family Bank Limited.
25.Regarding the issue of Security, it is true that under Order 42 rule 6 aforesaid, the Applicant is required to offer security for the due performance of the decree and the Court is entitled to take into account the fact that no such security has been offered in deciding an application thereunder. There is an agreement exhibited between Family Bank and the directors of Directline Assurance Company Limited, who are the insurers of the Applicant. The same is for a sum of Kshs.50,000,000/=. After keenly perusing the said agreement I note that the Applicant is not a party to the said agreement and that there is no evidence that the said guarantee is for the benefit of this matter specifically.
26.This application was timeously filed.
27.Having carefully considered the instant Application, the Court finds and holds that the Applicant has met the threshold to warrant the Court exercise of its discretion in its favour.
28.In the end the Notice of Motion dated 24th November, 2022, is found to be meritorious. Consequently, I allow it in the following terms: -