1.Before the Court for determination is the Notice of Motion dated July 25, 2022. It was filed by the appellant under Article 159(2)(d) of the Constitution of Kenya, Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, Chapter 21 of the Laws of Kenya as well as Order 40 Rule 1 and Order 51 Rules 1 and 2 of the Civil Procedure Rules. The appellant thereby seeks orders that:(a)Spent;(b)Spent(c)Pending the inter partes hearing and determination of this Appeal, the Court be pleased to set aside the ruling delivered on June 27, 2022 and all other consequential orders.(d)Spent(e)Pending inter partes hearing and determination of this Appeal an order of stay of execution be issued restraining the respondent whether by itself or its agents and/or servants from in any way acting on the interlocutory judgment delivered on October 13, 2022.(f)That the costs of the application be provided for.
2.The application was premised on the grounds that, by a ruling delivered in Mombasa CMCC No 1140 of 2021 on June 27, 2022, the lower court gave orders that were adverse to the appellant; and that the appellant is apprehensive that unless the respondent is restrained as sought herein, it will proceed and execute the aforementioned interlocutory judgment to the prejudice of the appellant. In the Supporting Affidavit sworn on the appellant’s behalf by Benard Hurmphrey Guya on July 25, 2022, it was averred that the impugned ruling was delivered in utter disregard of the provisions of the Arbitration Act, No 4 of 1995 and the rules of fair hearing; and therefore that, unless the orders sought are granted, the appeal will be rendered nugatory.
3.In response to the application, the respondent relied on the Replying Affidavit sworn by Mr. Geoffrey Kilonzo, Advocate, sworn on August 4, 2022. He deposed, inter alia, that the said application lacks merit, is bad in law and has been overtaken by events in that final judgment was entered against the appellant on October 13, 2021. He further deposed that, since the decree is a money decree, the appellant is not entitled to stay of execution; more so because the respondent is capable of refunding the decretal sum in the event of a successful appeal.
4.Upon directions being given on August 4, 2022 that the application be canvassed by way of written submissions, Ms. Kariuki for the appellant filed her written submissions dated October 17, 2022 proposing one issue for determination; namely, whether the Court should grant the stay of execution sought herein pending the hearing and determination of the appeal. She relied on Order 42 Rule 6(1) of the Civil Procedure Rules and the cases of Butt v Rent Restriction Tribunal  eKLR, R W W v E K W  eKLR and James Wangalwa & Another v Agnes Naliaka Cheseto  eKLR, as to the purpose of an order of stay and the prerequisites that must be met before the Court can grant such an order.
5.It was further the submission of Ms. Kariuki that the interlocutory judgment entered by the trial court was erroneous in so far as the appellant was denied the right to be heard. She added that the Court ought to look at the interests of both parties and grant orders that are geared towards engendering fairness in the interim, pending the hearing and determination of the Appeal.
6.On behalf of the respondent, written submissions were filed herein on October 14, 2022 by Ms. Nyabuto. She submitted that the application is a nullity as it was brought by an Advocate in disregard of the provisions of Order 9 Rule 9 of the Civil Procedure Rules, in that leave was not obtained by the firm of M/s Mbugua Ndiritu & Co Advocates to come on record after judgment. She relied on Tarwadi v Veronica Muehlemann  eKLR in which a suit was struck out on the same ground. However, since this is an interlocutory application, the Court is not seized of sufficient information at this stage to make a determination in this regard, noting that the lower court record is yet to be availed.
7.On the merits of the application, it is significant to point out that some of the prayers sought therein are already spent; and that the outstanding one are:(a)that pending the inter partes hearing and determination of this Appeal, the Court be pleased to set aside the ruling delivered on June 27, 2022 and all other consequential orders;(b)that pending inter partes hearing and determination of this Appeal an order of stay of execution be issued restraining the respondent whether by itself or its agents and/or servants from in any way acting on the interlocutory judgment delivered on October 13, 2022; and,(c)That the costs of the application be provided for.
8.Prayer [a] above being a substantive prayer belonging to the Appeal itself, can only be granted after hearing the parties in respect of the Appeal. It is therefore not a prayer available to the appellant at this interim stage. Accordingly, the only prayer for my consideration is Prayer [b] above; and therefore the single issue for determination is whether the appellant has made out a good case for the issuance of an order of stay pending appeal. In this regard, counsel for the respondent submitted that the appellant failed to satisfy the conditions for stay as set out in Order 42 Rule 6 of the Civil Procedure Rules, namely:(a)that substantial loss may result to the appellant unless the order sought is made;(b)That the application was filed without unreasonable delay;(c)That such security as may be ordered by the Court has been provided for the due performance of the decree.
10.Counsel also pointed out that the appellant had neither offered any security nor pleaded willingness to deposit security for the due performance of the decree. She accordingly urged the Court to find that the appellant has failed to demonstrate the existence of the three conditions precedent to warrant the grant of an order of stay. She added that the Appeal has no chances of success; and that the same was filed merely for the purpose of buying time and to block the respondent from enjoying the fruits of its judgment. Thus, counsel urged for the dismissal of the application and concluded her submissions by quoting from Republic v Attorney General & Another, Ex Parte James Alfred Koroso  eKLR in which Hon. Odunga, J. (as he then was) held:
11.I have given due consideration to the application in the light of the facts presented herein. Although it was expressed to have been brought under Order 40 Rule 1 of the Civil Procedure Rules, it is manifest from the Replying Affidavit and the written submissions filed on behalf of the respondent that the intention was to cite Order 42 Rule 6 of the Civil Procedure Rules, which provides that:
12.The provision presupposes that there be either a decree or order in respect of which precipitate action is looming. In this case the ruling and order in question is the Ruling delivered by Hon. Nyariki, RM, on June 27, 2022 in Mombasa CMCC No 1140 of 2021. A copy thereof was annexed to the appellant’s Supporting Affidavit, and it is manifest that the outcome thereof was a negative order. The learned magistrate concluded his ruling thus:
13.It is now trite that a negative order is incapable of execution and therefore not amenable to stay for purposes of Order 42 Rule 6 of the Civil Procedure Rules. Thus, in Raymond M. Omboga v Austine Pyan Maranga, Kisii HCCA No 15 of 2010, Hon. Makhandia, J. (as he then was) held:
16.There is a second reason why the application for stay is untenable and it is this. The Appeal is in respect of the ruling and orders issued by the lower court on June 27, 2022, yet in the instant application, the appellant essentially seeks stay of an interlocutory judgment delivered on October 13, 2021. Accordingly, in Raymond M Omboga v Austine Pyan Maranga (supra), it was held:
17.In the premises, it is my finding that the appellant’s application is incompetent; and that no useful purpose would be served by engaging in a merit consideration thereof from the standpoint of Order 42 Rule 6 of the Civil Procedure Rules. Accordingly, the appellant’s Notice of Motion dated July 25, 2022 is hereby dismissed with costs.It is so ordered.