9.Order 42 Rule 6 (1) and (2) of the Civil Procedure Rules, provides for stay of execution in the following words:(1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.(2)No order for stay of execution shall be made under sub-rule (1) unless—(a)the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and(b)such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”
10.The general rule in an application for stay is that if there is no overwhelming hindrance, a stay of execution ought to be granted so that an appeal, if successful, may not be rendered nugatory.
11.Cotton L J in Wilson v Church (No 2) 12 Ch D (1879) 454 held:
12.In exercise of its discretion in an application for stay orders, the Court is guided by the grounds set out in the case of Stephen Wanjohi v Central Glass Industries Ltd Nbi HCCC No 6726 of 1991 where the Court emphasized that:
13.The Respondent herein, being the successful litigant in this matter, and in possession of a valid court judgment, is no doubt entitled to the fruits of his judgment, unless there exist exceptional circumstances to warrant the stay of that judgment.
14.The Appellant/Applicant’s case is that it stands to suffer substantial and irreparable loss if the orders sought are not granted. The decretal sum in this matter is Kshs 399,742.36. The issue is whether this figure is substantial as to occasion the Appellant/Applicant loss if its appeal were to succeeds.
15.The Respondent has not demonstrated his ability to refund the decretal sum should the Appellant’s appeal succeed, and which in my opinion, may render the Appellant’s appeal nugatory.
17.The Appellant/Applicant’s motion was filed on April 13, 2023, while the judgment subject thereof, was rendered on March 16, 2023, just about a month thereafter. One month in my view is not inordinate delay.
18.It is also not disputed that the Applicant adhered to the orders of the Court granted earlier in respect of security, having deposited the security in court as directed.
19.In view of the foregoing, I find and hold that the Appellant/Applicant has met the conditions set out under Order 42 Rule 6 (1) and (2) of the Civil Procedure Rules, having established sufficient cause, showed substantial loss and the furnishing of security, as to warrant grant of stay orders.
20.Consequently, an order for stay of execution of the judgment delivered on March 16, 2023, in this matter is hereby granted pending hearing and determination of the appeal.
21.The costs of this application shall abide the appeal.