The Applicant’s Case.
3.The Applicant stated that the subordinate court delivered a Judgment dated 6th June 2023 where the court ordered the Applicant to pay the 1st Respondent Kshs 1,955,100/= as general and special damages.
4.It was the Applicant’s case that its Board of Governors were aggrieved by the trial court’s decision and lodged an appeal and as such they sought stay of execution of the said Judgment pending the hearing and determination of their appeal.
5.The Applicant stated that unless this court restrains the 1st Respondent, she may proclaim and cart away its attachable assets thereby making this Application and their Appeal superfluous. The Applicant further stated that it would suffer substantial loss and damage if execution was to proceed.
6.It was the Applicant’s case that its Appeal was arguable and had a high chance of success. It was the Applicant’s further case that the 1st Respondent was a person of unknown means and it was apprehensive that if the Decretal sum was paid out and the Appeal was successful, it would not be refunded.
7.The Applicant stated that it was ready and willing to give security for the decretal amount in the form of an Insurance Bond or Bank Guarantee or any other form that the court deems fit.
8.It was the Applicant’s case that the 1st Respondent would suffer no prejudice if the stay was granted.
Applicant’s Written Submissions.
12.Through its written submissions dated 14th September 2023, the Applicant submitted that the decretal sum was Kshs 1,955,100/= and that it would suffer substantial loss if execution was allowed to proceed. That the ability of the 1st Respondent to refund the decretal sum if the Appeal was successful was unknown. The Applicant further submitted that its Appeal would be rendered nugatory and would become an academic exercise if the 1st Respondent would be unable to refund the decretal sum.
13.It was the Applicant’s submission that it had a legitimate fear that the 1st Respondent may cart away their motor vehicle registration number KCE 815D an Isuzu bus in execution of her Decree.
14.The Applicant submitted that its Appeal raised triable issues and had a high chance of success.
15.It was the Applicant’s submission that they brought the present Application without delay. That the Judgment in the trial court was delivered on 6th June 2023 and the present Application was filed on 10th July 2023 which difference was 1 month and 4 days. It was the Applicant’s further submission that there was no inordinate delay in filing the present Application.
16.The Applicant submitted that it was ready and willing to give security for the decretal amount in the form of an Insurance Bond or Bank Guarantee or any other form that the court deems fit.
1st Respondent’s written submissions
17.The 1st Respondent submitted that Judgment in the trial court had been issued in her favour and she should not be denied the fruits of her success. That the Applicant had not proved any substantial loss it would suffer if she was to be paid the decretal sum. The 1st Respondent further stated that the prayer for stay of execution was oppressive.
18.It was the 1st Respondent’s submission that the Applicant should pay her half the decretal sum and the other half to be deposited in court as security pending the hearing and determination of the Appeal. She relied on Nicholas Stephen Okaka & another vs Alfred Waga Wesonga (2022) eKLR.
19.I have read through and carefully considered the Notice of Motion Application dated 7th July 2023, the 1st Respondent’s Replying Affidavit dated 14th July 2023, the Applicant’s Written Submissions dated 14th September 2023 and the 1st Respondent’s Written Submissions dated 19th September 2023. The only issue for my determination was whether the Applicant had satisfied the requirements for the grant of the Order of Stay of Execution.
20.The principles that relate to Stay of Execution Orders are well settled. Order 42 Rule 6 of the Civil Procedure Rules stipulates: -1.No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but the court appealed from may for sufficient cause order stay of execution of such decree or order and whether the application for such stay shall have been granted or refused by the court appealed from the court to which such appeal is preferred shall be at liberty on application being made to consider such application and to make such order thereon as may to it seem just and any person aggrieved by an order of stay made by the court from whose decision the Appeal is preferred may apply to the appellate court to have such orders set aside.2.No order for stay of execution shall be made under sub rule 1 unless: -a)The Court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; andb)Such security as the Court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the Applicant”.
21.Thus under Order 42 Rule 6(2) of the Civil Procedure Rules, the Applicant should satisfy the court that:-i.Substantial loss may result to it unless the order is granted.ii.That the Application has been made without unreasonable delay.iii.The Applicant gives such security as the court orders for the due performance of such Decree or order as may ultimately be binding to them.
22.Regarding the issue of substantial loss, the Court of Appeal in the case of Kenya Shell Limited vs Benjamin Karuga Kibiru & another (1986) eKLR, held that: -
23.Similarly in James Wangalwa & Another vs Agnes Naliaka Cheseto (2012) eKLR, Gikonyo J held that:-
24.The Applicant stated that it would suffer substantial loss unless the execution of the Decree was stayed. That the decree was for a substantial amount of Kshs 1,955,100/= and the 1st Respondent being a person of unknown means would not be able to refund it the decretal sum in the event that its Appeal succeeded.
25.In my view, the burden is on the Applicant to prove that the 1st Respondent would not be able to refund the decretal sum. Shifting that burden to the 1st Respondent who is the Judgment holder is unjust. In the case of ABN AMRO Bank vs Lemond Foods Limited Civil Application No.15 of 2002 the Court Appeal held that:-
26.The Applicant, other than alleging that the 1st Respondent was a person of straw, did not adduce any evidence or set out factual circumstances to demonstrate that it would suffer substantial loss if the execution was not stayed.
27.Based on the evidence before me, it is my finding that the Applicant has not proved the substantial loss that it would suffer.
28.On the issue of unreasonable delay, In Republic vs Attorney General & Another, Baps International Limited (Interested Party) Ex parte (2020) eKLR, Nyamweya J. (as she then was) stated: -
29.Judgment in the trial court was delivered on 6th June 2023. The present Application for stay of execution was filed on 10th July 2023. It is my finding that the seven weeks’ difference represents a reasonable timeline within which this Application was filed.
30.Regarding security for the performance of the Decree, Gikonyo J in the persuasive case of Arun C Sharma vs. Ashana Raikundalia t/a Raikundalia & Co. Advocates & 2 Others (2014) eKLR held that: -
31.Similarly, in Gianfranco Manenthi & Another vs Africa merchant Assurance Co. Ltd (2019) eKLR Nyakundi J. observed: -
32.The Applicant has demonstrated willingness to deposit security as a condition for the award of the stay of execution. The Applicant submitted that the security would be in the form of an Insurance Bond, a Bank Guarantee or any other form that this court deemed necessary.
33.It is salient to note that the power of the court in deciding whether or not to grant a stay of execution is discretionary. In the case of Butt v Rent Restriction Tribunal (1982) KLR 417 the Court of Appeal held that
34.Also in the case of Samvir Trustee Limited vs Guardian Bank Limited (UR), Warsame J (as he then was), held that:-
35.I have noted that the Applicant’s main reason for the prayer of stay of execution is that it was apprehensive that the 1st Respondent would be unable to refund it the decretal sum if the Appeal succeeded. I have also noted that the 1st Respondent was the decree holder who should be enjoying the fruits of the Judgment. This Court while balancing these two interests, must satisfy itself that that no party would suffer undue prejudice.
36.This principle was enunciated in the decision of Gikonyo J. in Absalom Dova vs. Tarbo Transporters (2013) eKLR, where he stated: -
37.Similarly in RWW vs EKW (2019) eKLR, the court held that:-
38.In the final analysis, even though the Applicant has failed to satisfy all the three conditions for the grant of stay of execution, it is my finding that the Applicant does not deserve to be driven away from the seat of justice as its right of appeal is enshrined in the constitution. The Court of Appeal in Judicial Service Commission & Secretary, Judicial Service Commission v Kalpana H. Rawal (2015) eKLR held that: -
39.In the end, having considered the pleadings and evidence before me and in the final analysis thereof, stay of execution of the Judgment in Sotik Civil Suit Number 142 of 2018 is granted on the following conditions: -i.The Applicant shall pay the 1st Respondent half of the decretal sum being Kshs 977,550/= within 45 days of this Ruling.ii.As Security for the performance of the Decree, the Applicant shall provide a bank guarantee of Kshs. 977,550 from a reputable Bank within 45 days of this Rulingiii.Failure by the Applicant to meet (I) and (II) above within the stipulated time will void the stay of execution.iv.The Applicant shall file its record of Appeal within 30 days of today. The said appeal shall be deemed properly on record upon fulfilment of condition I and II above.