1.The application is dated March 22, 2023 in which the Applicant seeks the following orders:-a.Spentb.That pending the hearing and determination of this application inter parties there be a stay of execution of the Judgment delivered on March 13, 2023 and any further consequential orders.c.That pending the hearing and determination of the intended appeal to the Court of Appeal, there be a stay of execution of the Judgment delivered on March 13, 2023 and any further consequential orders.d.That the costs of this application be provided for.
2.The application is supported by the grounds annexed thereto together with the Supporting Affidavit of the Applicant sworn on March 22, 2023.
3.The Applicant avers that he is aggrieved with the Judgment delivered on March 13, 2023 and that he has filed a Notice of Appeal against the said Judgment. He is apprehensive that the Respondent will execute the Judgment, a scenario that will occasion him irreparable loss. That he has requested for certified copies of proceedings in preparation of filing a Record of Appeal and that in the interest of justice he urged the Court to preserve the subject suit properties so as not to render his appeal nugatory.
4.The application has been opposed by the Respondent vide the Replying Affidavit of Duncan Mbogo Wanjigi sworn on March 24, 2023. The deponent terms the application as unmerited, frivolous and an abuse of the Court process. Further that the Applicant has failed to discharge the onus placed on him with respect to prove of substantial loss. That the Applicant has not offered to deposit the 12 titles being the subject suit properties to serve as security for the due performance of any decree that may be binding on him if he is unsuccessful in the intended appeal. That it is unfair for the Applicant to keep the purchase price in the sum of Kshs 2.1 Million already paid to him by the Respondent and fail to deposit any security towards meeting the due performance of the Court’s decree. Moreover that the Applicant has not established any loss or damage as the subject matter of the suit is land which will eventually be available should he succeed in his appeal. That the Applicant does not live on the suit lands and neither has he established that the Plaintiff has any intention to alienate the said properties to his detriment.
5.The Applicant was further castigated for annexing documents that were not produced during the trial. The Court was urged to dismiss the application with costs.
6.The Applicant filed a Further Supplementary Affidavit dated March 31, 2023 in support of the application which Affidavit has been read and considered.
7.Additionally, the Applicant filed a further affidavit on April 27, 2023 in which he averred that the titles of the suit properties were in the custody of his sickly mother who is currently suffering from Dementia and that he does not know the whereabouts of those titles hence his inability to avail them as security in this matter.
8.On March 22, 2023 parties were directed by the Court to file their written submissions. The Applicant’‘s submissions were filed on April 4, 2023 while those of the Respondent were filed on April 14, 2023. The Court has read and considered the submissions and all the highlights made by the parties.
9.The key issue for determination is whether the application is merited.
10.Stay in case of an Appeal is provided under Order 42 rule 6(2 of the Civil Procedure Rules which states as follows:-
11.Going by the above provision, it is apparent that an Applicant must establish the following;a.The existence of sufficient cause.b.Proof of substantial loss.c.Application must be filed without unreasonable or undue delay.d.Provision of security for the due performance of the decree that may ensue, however the issue of security is within the mandate or discretion of the Judge.
12.The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the Appellant who is exercising his right of appeal is safeguarded and in the event his appeal is successful, is not rendered nugatory. Equally the right to the enjoyment of fruits of the Judgment of the Respondent must be protected.
13.This Court is guided by the decision in the case of Butt v Rent Restriction Tribunal (1982) KLR 417 where the Court of Appeal stated what ought to be considered in determining whether to grant or refuse stay of execution pending appeal namely; -a.The power of the Court to grant or refuse an Application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.b.The general principal in granting or refusing a stay is; if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should that appeal Court reverse the judge’s discretion.c.A judge should not refuse a stay if there are good grounds for granting it merely because in his opinion a better remedy may become available to the Applicant at the end of the proceedings.d.The Court in exercising its discretion whether to grant or refuse an Application for stay will consider the special circumstances of the case and its unique requirements.
14.In determining the application for stay therefore, the Court must do a balancing act in the preservation of the rights of both parties pending the conclusion of the appeal. It is never a function of the Court to disadvantage one party while giving no legitimate advantage to the other.
15.The Judgment in this case was rendered on March 13, 2023 while this application was filed on March 22, 2023, a period of 9 days. It is trite that there is no mathematical method of calculating delay. It is for the Court to consider the peculiar circumstances of each case. In this case, the Court finds that 9 days is not inordinate and therefore the application is mounted without any delay.
17.Substantial loss may be presented in various forms and in whichever form, it considered as the cornerstone upon which an order of stay of execution is granted. It is what has to be prevented from happening so as not to render an appeal nugatory. It is therefore imperative for an Applicant to establish and demonstrate substantial loss in an application for stay of execution. The Applicant must show the loss he stands to suffer if the order for stay is not granted.
18.In this case, it is not disputed that the Respondents are in possession of the suit properties. It is not also disputed that the titles of the suit properties are registered in the name of the Applicant. Although the Applicant has stated in his Affidavit that he is apprehensive that the Respondent will execute the Judgment he has not placed before the Court the basis of his apprehension neither has he placed before this Court evidence of impending threat of execution by the Respondent. Having said that, the Court is alive to the fact that the mere fact of filing an appeal by itself is not a bar to execution by the Respondent and should execution ensue the appeal will likely be rendered nugatory.
19.That said the Court holds that there is no overwhelming hindrance to the issuance of the orders of stay in this matter for the purpose of holding the rights of both parties even and not to render the appeal nugatory. The Respondent has not given any prejudice that is likely to suffer given that it is in occupation of the suit lands.
20.On the issue of security for the due performance of the decree it is trite that the Court retains the discretion to grant or not to grant an order for security. In this case the Court orders the Applicant to deposit the sum of Kshs 200,000/- in Court as security for costs.
21.Final orders for disposala.The Application is allowed.b.The Applicant to deposit the sum of Kshs 200,000/- in Court as security for the due performance of the decree of this Court within a period of sixty (60) days, in default the orders shall lapse.c.The Applicant will meet the cost of the application in favour of the Respondent.Orders accordingly.