Ci Appellant’s Submissions:
6.Vide his submissions dated 20th April, 2023 and filed on 8th May 2023 the Appellant outlined the issue for determination as follows:-
7.The Appellant has restated the known principle of law that orders of stay of execution and intended to preserve the subject matter pending the hearing and determination of an appeal while balancing the interest of the parties. Reliance has been placed on the case of RWW vs GKW (2019) eKLR as quoted in Stanley Kiplagat Rono & Another –vs- William Kiprotich Cherus (2021) eKLR, in this regard.
8.The Appellant submits that a denial of orders of stay of execution will occasion him substantial loss that cannot be remedied by an award of damages and costs.
9.It is the Appellant’s submission that the impugned judgment was delivered on 1st September, 2022 and that he filed the application herein simultaneously with his appeal on 3rd November, 2022 wherefore his application was filed timeously.
10.The Appellant submits that he is ready and willing to release the motor vehicle and that whereas the same is still under attachment, he has been holding the same without washing it.
11.It is the Appellant’s position that the Respondent will not suffer any prejudice that cannot be compensated by an award of costs and he thus per paragraph 8 of his submissions, craves that his notice of motion application dated 15th day of October 2021 be allowed lest he suffers irreparable loss.
12.On the issue of costs, the Appellant submits that the Respondent agents; M/s Jeaks Auctioneers have presented an unreasonable invoice of K/shs.104, 417 which is inclusive of storage charge and the cumulative costs are way above the decretal sum wherefore the Respondent is out to enrich himself unjustly to the prejudice of the Applicant who is a primary school teacher and thus not able to meet such costs. The Applicant thus invites this court to balance the interest of both parties lest he is subjected to double jeopardy of paying what he terms as exaggerated costs in addition to the impugned decretal sum.
13.In conclusion the Appellant urges this court to release the attached motor vehicle on a running attachment until tis appeal is heard and determined. Further that a caveat be placed to prohibit the Respondent from selling and or transferring the attached motor vehicle.
Cii. Respondent’s/Claimant’s Submissions:
14.The Respondent has set out the issues for determination by this court as being whether or not the Appellant is entitled to the orders sought in his notice of motion dated 22nd December, 2022.
15.The Respondent submits that the lodging of an appeal does not guarantee an appellant orders of stay of execution and an Applicant has to satisfy the tripartite conditions set out in Order 42 Rule 6 of the Civil Procedure Rules; the Applicant has to demonstrate that he stands to suffer substantial loss if stay orders are not granted, that he has approached the court without delay and finally that he is ready to furnish security for the due satisfaction of the decretal sum in the event that his appeal is disallowed. The case of Owade & Another –vs- Njoroge (2022) eKLR has been cited in support of this position.
16.The Respondent has posited that it is incumbent upon the Applicant to adduce evidence of substantial loss and not to merely throw that assertion to the court without demonstrating the loss. The reliance has been placed on the cases of George Kahura Wahiku -vs- Scholastica Gathinya Mwangi (2022) e-KLR, Justus Kyalo Musyoka -vs- Benjamin Karuga Kibiru (1986) eKLR, where the courts rendered themselves on the need to provide evidence of substantial loss in an application for stay of execution pending appeal.
17.On the issue of delay, the Respondent submits that the Appellant had been in a slumber from 29th August, 2022 and was only jogged into motion by the proclamation and attachment of is motor vehicle by M/s. Jenks Auctioneers on 21st December, 2022.
18.The Respondent maintains that the Appellant had duly been served with a proclamation and eventually with a notification of sale of the attached motor vehicle pursuant to Rule 12 (c) of the Auctioneers Act No. 5 of 1996.
19.The Respondent submits that the Appellant had initially enjoyed 30 days stay of execution but opted not to liquidate the judgment sums within that period wherefore the Appellant’s hands are tainted. Further that the Appellant is seeking equity while derogating from equity.
20.As regards the need for the court to balance the interests of parties, the Respondent submits that the successful party is ordinarily entitled to enjoy the fruits of the judgment and when considering a stay application a court has to uphold the overriding objective of dispending justice in accordance with the law while preventing the abuse of court process. Further that the right of appeal has the balance against the right of successful party to enjoy the fruits of a judgment without road blocks by the Appellant. Citation has been made of the cases of Machia t/a Macharia & Co. Advocates –vs- East African Standard (2012) eKLR, Wilson –vs- Church (No. 2) (1879) 12 ChD. 454 (458), Owade 7 Another –vs- Njoroge (2022) eKLR and Justus Kyalo Musyoka –vs- Joma Kivungo (2019) eKLR.
21.On storage costs the Respondents submit that M/s. Jenks Auctioneers are entitled to their costs for the profession services rendered given that the Appellant had been duly served with a proclamation but opted not to satisfy the judgment sum even after the trial court had granted him a 30 days stay of execution. Further that the payment of execution costs cannot be tantamount to exposing the Appellant to double jeopardy. Reliance has been placed on Rule 7 of the Auctioneers Practice Rule 2009 which provides that a debtor shall pay auctioneers charges save for the exception circumstances outlined under Section 7 a-c of the said Rules. It is submitted that a waiver of payment of auctioneers charges will further prejudice the Respondent who is already being kept away from realizing his judgment.
22.The Respondent submits that the auctioneer charges are ascertainable as fees and storage charges from 22nd December, 2022 until the date of release or auction which ever comes earlier.
23.It is posited by the Respondent that the court can order provision of further security pursuant to rule 107 (3) and that in this instance the Appellant has filed to deposit such costs as were ordered by this court hence exhibiting his general reluctance to comply with court orders.
24.The Respondent submits that this court should order the Appellant to bear the auctioneer’s costs and that the stay orders be discharged and the Respondent be allowed to proceed with execution process.