1.By a Notice of Motion dated 16.8.23, the Appellant/Applicant seeks stay of execution or further action, of the decree arising from the judgment delivered in favour of the Respondents, on 30.9.22 in Mariakani SRMCC No. 165 of 2019. The Application is supported by the grounds on its face and in the supporting affidavit of Nicholas Misango Shitambanga, the registered trustee and a minister of faith of the Appellant/Applicant, sworn on even date.
2.The Appellant/Applicant is aggrieved that the trial court entered an ex-parte judgement and apportioned liability at 100% against it. Further, that the trial court awarded damages for pain and suffering at Kshs. 50,000/=, loss of expectation of life at Kshs. 150,000/=, loss of dependency at Kshs. 2,450,196/= special damages at Kshs. 340,050/=, costs of the suit and interest. The Appellant/Applicant’s application for stay of execution was on 27.7.23 dismissed by the lower court on grounds that no triable issues were raised. This is despite the fact that the Appellant/Applicant being registered under the Societies Act is not a legal entity with capacity to be sued. Being dissatisfied with the said ruling, the Appellant/Applicant filed a memorandum of appeal dated 11.8.23.
3.It was further averred that the execution process has commenced through Fantasy Auctioneers, and motor vehicle registration no. KCJ 025 R Toyota van, belonging to the deponent, has been attached. It is the Appellant/Applicant’s case that its appeal is meritorious with good chances of success as it raises serious questions of both law and fact and that the same will be rendered nugatory in the event the orders sought are not granted. The Appellant/Applicant expressed willingness to abide by such terms and/or conditions that this Court may impose for the grant of the orders. Further that the Respondents do not stand to suffer any prejudice and any, may be compensable with an award of costs. On the other hand, the Appellant/Applicant stands to suffer grave prejudice and substantial loss if the Application is not allowed. The Court was urged to exercise its discretion in favour of the Appellant/Applicant in the interests of justice.
4.The Respondent opposed the application vide a replying affidavit sworn on 30.8.23 by Michael Munene Njogu, one of the Respondents. He stated that the Application is misconceived, unmerited and bad in law for the reason that summons and documents in the suit in the lower court for recovery of damages, were duly served upon the Appellant/Applicant on 23.9.19 and on 12.2.2020. On being satisfied that service was effected, the lower court endorsed the request for interlocutory judgment and fixed the matter for assessment of damages. Thereafter damages were assessed and judgment entered on 30.9.22. Entry of judgment was served on Nicholas on 15.11.22 but he refused to sign a copy thereof. Proclamation notice was served on 20.4.23 by Fantasy Auctioneers, but was never acted upon. The Appellant/Applicant was only awakened when the Auctioneer went to take away the motor vehicle.
5.It is the Respondents’ case that execution is a lawful process. Further that there is no evidence of substantial loss that is likely to be occasioned to the Appellant/Applicant should stay not be granted and therefore the appeal cannot be rendered nugatory. The Application is an afterthought, intended to circumvent the rights of the Respondent to obtain the fruit of a valid and legal judgment. The respondents however state that should the Court be inclined to grant the orders sought herein, then the Appellant/Applicant should be condemned to pay throw away costs and auctioneer’s charges and further deposit the entire decretal amount in a joint interest earning account in the names of the parties’ advocates. The Respondents urged that the Application be dismissed with costs.
6.The jurisdiction of the Court to grant stay of execution is set out in Order 42 Rule 6 of the Civil Procedure Rules. Sub-rule 2 provides:
7.The general rule regarding an order for stay of execution is that first and foremost, it is discretionary. Where the Court is called upon, as in the present case, to exercise its discretion in any application, it must do so judicially, the overriding objective being to ensure that the ends of justice are met.
8.The Court of Appeal set out the factors to be considered in an application for stay of execution pending appeal in the Butt v Rent Restriction Tribunal  KLR 417, as follows:
9.Flowing from the cited decision, it can be discerned that while considering an application for stay, the discretion of the Court must be exercised in a manner that will not prevent an appeal or render an appeal nugatory; the Court will consider whether there is any overwhelming hinderance for the grant of stay; whether good grounds have been advanced; existence of any special circumstances and unique requirements. Lastly the Court may order security for costs.
10.The law requires that an application for stay of execution be filed without unreasonable delay. The decision appealed against was made on 27.7.23 while the Application herein is dated 16.8.23. I am satisfied that the Application was made without undue delay. On substantial loss and the appeal being rendered nugatory, no material was placed before the Court to support this contention. The Court has however considered the willingness of the Appellant/Applicant to abide by whatever conditions may be imposed for the grant or the orders sought. The Respondents are also amenable to conditional stay and there is no overwhelming hinderance for the grant of stay.
11.It is trite law that the purpose of stay of execution is to preserve the substratum of the matter in dispute. In the case of RWW v EKW  eKLR, Ongeri, J. stated:
12.Having considered the foregoing, I am persuaded that in the wider interests of justice, it is necessary to preserve the status quo pending the hearing and determination of the appeal. Accordingly, I allow the Application dated 16.8.23 and grant stay of execution pending appeal, on the following terms:i. The record of appeal shall be filed within 21 days.ii. The entire decretal amount shall be deposited in Court by 17.11.23.iii. In default, the stay granted herein shall lapse.iv. The costs of this application shall abide the outcome of the appeal.