1.The Appellant filed an application dated January 16, 2023 seeking the following orders:a.Spentb.Spentc.Pending the hearing and determination of the intended appeal, there be a stay of execution of the decree of the honourable court in ELDORET ELC NO 132 OF 2016.d.The costs of this application be provided for.
2.The application is based on the grounds set out on the face of the Notice of Motion and the Applicant’s Supporting affidavit sworn on January 16, 2023. The gist of the Applicant’s application is that his case was dismissed on December 20, 2022 and an injunction was issued against him restraining him, his servants or agents from erecting structures or interfering with the defendant’s enjoyment of the 1st defendant property known as Uasin Gishu/Kimumu Settlement Scheme/7563. Being aggrieved by the said decision, the in Applicant has filed an appeal in the Court of Appeal. Since he is possession of the suit property, he of the view that he will suffer substantial loss if the judgment is enforced before his appeal is heard and determined.
3.In opposing the application, Luka Kipchumba the Respondent herein filed a Replying Affidavit sworn on the February 9, 2023 in which he deponed that there were no good reasons why execution should be stayed as is the registered owner of the suit property and he has been continuously utilizing it. He depones that the application is merely intended to prevent him from enjoying the fruits of his judgment.
4.The court directed that the parties to file their submissions in respect of the application and both parties duly complied.
Analysis And Determination
5.Having considered the application, the affidavits filed by the parties and the rival submissions, the singular issue for determination is whether the Applicant has satisfied the conditions for the grant of a stay of execution.
6.The principles that guide the court in considering an application for stay pending appeal are found in Order 42 Rule 6 of the Civil Procedure Rules which provides as follows:Order 42 Rule 6 (2):
9.What can be gleaned from the above authorities is that an applicant must demonstrate in a convincing manner that if the stay is not granted, he will suffer substantial loss. In the present case the applicant has merely asserted that he is in exclusive possession of the suit property, a fact that was disproved during the hearing. What is clear from the record is that the Applicant has been using a portion of the suit property to carry on his business, and he has not demonstrated that in the event that he succeeds on appeal, the Respondent would not be able to compensate him for any loss he might have suffered.
11.Beyond his desire to continue occupying the disputed portion of land, the Applicant has not demonstrated what tangible loss he stands to suffer if the order for stay is not granted. It is therefore my finding that the Applicant has failed to satisfy this condition.
Whether the application has been made without undue delay.
12.The applicant filed a Notice of Appeal soon after the judgment was delivered. He then filed an application for stay on January 16, 2020, which is less than a month after judgment was delivered. It was therefore made without undue delay.
Whether the Applicant has furnished security for costs.
14.With regard to security for costs, the applicant has not demonstrated by way of affidavit that he is willing to furnish security for costs which is one of the prerequisites for the grant of an order of stay pending appeal.
15.All in all, the Applicant has not satisfied all the conditions for stay. Accordingly, the application lacks merit and it is hereby dismissed with costs to the Respondent.