1.Before this court for determination is the Applicant’s notice of motion application dated December 18, 2022brought under section 1A, 1B and 3A of the Civil Procedure Act; Order 22 rule 22, Order 42 rule 6(2), and Order 46 rule 6 of the Civil Procedure Rules, 2010. The applicant seeks the following orders; -
2.The application is supported by the affidavit of Gabriella Susat, the applicant herein, dated December 18, 2022and based on the grounds listed on the face of it.
3.The basis of the application is that following ex-parte judgment delivered against the applicant in Malindi CMCC No. 415 of 2009 on May 20, 2022, the applicant was ordered to pay therespondent Kshs. 900,000/- special and general damages. On July 4, 2022, she filed an application before the subordinate court seeking to set aside the said judgment and be granted leave to defend the suit. That application was dismissed vide a ruling dated November 1, 2022. Dissatisfied with that ruling, the applicant preferred an appeal before this court by filing a memorandum of appeal dated November 30, 2022. The applicant is apprehensive that the respondent will commence execution process of the decree of the lower court. To her, that will amount to being condemned unheard.
4.The respondent opposed the application. He filed a replying affidavit dated January 31, 2023 wherein he deposed that the application was res judicata the application dated July 4, 2022 filed before the subordinate court. He added that the allegation that the applicant was not aware of the hearing date is untrue since she was served with the hearing notices.
5.Parties agreed to canvass the application by way of written submissions. I have looked at the submissions that have been filed. The issues for determination are;i.Whether the application dated December 18, 2022is res judicata.ii.Whether the application is merited.
7.There is no doubt that an almost similar application had been filed before the subordinate court. The learned magistrate Hon. J. Ongondo, SPM dismissed that application onNovember 1, 2022for lack of merit. The applicant, before that court, had sought stay of execution of the decree pending the determination of the suit and setting aside of the ex-parte judgment. The pending appeal is against that ruling and the present application seeks stay of execution of the decree pending the determination of the pending appeal. In my view, although the parties are the same, the issue is quite different. I find that the application dated December 18, 2022is not res judicata.
8.Further to the above, stay may be granted for any other sufficient cause and that the court in deciding whether or not to grant the stay will be guided by the overriding objectives stipulated in sections 1A and 1B of the Civil Procedure Act.
9.It follows therefore that the applicant was obliged to satisfy the conditions set out above. That is, (a) substantial loss may result to the applicant unless the order is made, (b) that the application has been made without unreasonable delay, and (c) that such security as the court orders for the due performance of such decree or order as may ultimately be binding on the applicant has been given.
11.Further, in RWW –v- EKW  eKLR, the court considered the purpose of a stay of execution order pending appeal, in the following words;
12.In the instant case, the application was filed without unreasonable delay. However, save for stating that if execution is not halted, she stands to suffer condemnation unheard, the Applicant did not demonstrate how execution, a lawful process, would cause her substantial loss. The applicant did not even aver that the Respondent may not be able to repay the decretal amount if paid. In any case, the decree being a money decree, the same can be refunded in the event that the outcome of the case is against the Respondent. In the circumstances, I am not satisfied that the applicant has demonstrated that she stands to suffer substantial loss if stay is not granted.
13.Accordingly, as it was held in the James Wangalwa case [supra], substantial loss is the cornerstone of this court’s jurisdiction. Therefore, having failed to demonstrate how she stands to suffer substantial loss, I find no sufficient reason to interfere with the rights of the respondent to enjoy the fruits of his judgment.
14.The upshot is that the application dated December 18, 2022is unmerited. It is hereby dismissed.