1.The appellant filed the Notice of Motion dated December 14, 2022 seeking inter alia stay of execution of the judgment delivered on December 2, 2022 in Mombasa CMCC No. 1470 of 2017 pending the hearing and determination of this appeal.
2.They stated that they have an arguable appeal which will be rendered nugatory if the order for stay is not issued. The appellant has assets and can pay should the court find that this appeal is not merited. The applicant is ready to comply with any reasonable condition the court may impose.
3.The respondent filed a replying affidavit of Francis Mulatya Kiema. The Respondent prayed that a sum of Ks 6,317,084 be deposited as a condition for the grant of stay.
Analysis and determination
4.I have considered the said submissions together with the authorities relied upon by the parties as well as the law and in my respectful view, there is only one issue for determination which is whether the Appellant has made out a case for grant of orders of stay pending hearing and determination of appeal preferred. Corollary to this finding is the issue of costs.
5.The principles for grant of stay of execution pending appeal are settled. Stay of Execution pending appeal is governed by Order 42, Rule 6 of the Civil Procedure Rules, 2010 which provides as follows: -
6.The power of a court to grant stay of execution is discretionary and just like any other discretionary power, the same must be exercised judiciously and not capriciously or whimsically. It must be recalled that the purpose of stay of execution is to preserve the subject matter in dispute while balancing the interests of each of the parties to the dispute. In RRW v EKW  eKLR, the Court of Appeal addressed itself on this issue as hereunder: -
7.Having settled on the principles, an interrogation of whether the Applicant has met the tests above is imperative. Having considered the Replying Affidavit that the Respondent has got no objection to grant of stay save for the deposit of decretal sum as security, this court shall limit itself to the issue of security only.
9.In this case, the Respondent demands for the entire decretal amount as security. The Appellant states it would be inequitable to condemn it to deposit the entire amount. I have considered the submission by the Appellant that should the appeal not be successful, there is capacity to pay the decretal amount, which is the essence of the security. I therefore exercise the discretion of the court and order that a sum of Ksh. 1,700,000 be deposited as security in a joint interest earning account.
10.On the issue of costs, the same is provided for under section 27 of the Civil Procedure Act and the award of costs is discretionary. The costs should follow the outcome of the appeal.
11.Following the foregone discourse, the upshot is that the following orders do hereby issue: -a.There be stay of the judgment and decree of the court given in Mombasa CMCC 1470 of 2017 pending the hearing and determination of this appeal.b.The appellant to issue a bank guarantee for a sum of Ksh 1,700,000 within 60 days.c.Default of (b) above, the application stands dismissedd.Costs to follow the outcome of the appeal.